Consultation on a Small Payments Scheme for the Mental Capacity Act 2005
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
Today I am publishing the Government’s response to the consultation on a small payments scheme for the Mental Capacity Act 2005.
The Mental Capacity Act (MCA) is a crucial piece of legislation that protects vulnerable individuals who may be unable to make decisions for themselves. The principles of the MCA guide us in empowering these individuals to make their own decisions when possible and supports their families and carers to make decisions in their best interest when necessary.
It is a long-held principle that an adult must have proper legal authority to access or deal with property belonging to another adult. In cases where the adult lacks mental capacity, the MCA provides the framework for them to grant legal authority by appointing a lasting power of attorney (LPA) while they still have mental capacity, or for third parties to obtain legal authority through applications to the Court of Protection (CoP).
Concerns have been raised that the existing CoP process for obtaining legal authority to access accounts on behalf of individuals who lack mental capacity creates barriers to access small value assets. This has particularly been highlighted in the case of accessing matured Child Trusts Funds, where a campaign by the families of young adults with learning disabilities has led to attention in both the Lords and Commons.
In response to these concerns, the Government decided to examine whether there was a case for an alternative process to the current CoP deputyship where access to small funds was required. We consulted on a small payment scheme that would be run by financial services firms and permit access for six months to limited funds up to £2,500 from one account belonging to an individual who lacks mental capacity without an order from the CoP being sought. The scheme set out to meet three aims:
Scope: Scheme must be broad enough to be useful and avoid inadvertent discrimination;
Security: Assets of vulnerable individuals should not be subject to unacceptable financial risk; and
Simplicity: The scheme must be straightforward and allow quicker access to limited funds than current processes, while being easy for financial service firms to implement.
The consultation received 225 responses and provided the opportunity for key stakeholders from the financial, legal and disability sectors as well as parents and carers supporting those who lack mental capacity to share their concerns about the current system and opinions on the new proposal.
The consultation provided clear evidence of the challenges faced in the current system. Most consistently respondents complained of the lengthy and complex CoP application forms, and the time taken to complete the application. It has also become apparent through the consultation that there is a general lack of awareness of the MCA. In many cases families and carers are often caught off guard when their child turns 18 as they were not aware of the MCA and the need to obtain legal authority to manage another person’s financial affairs if they lack capacity.
I want to make it simpler and quicker for the people who care for individuals who lack mental capacity to access the funds on their behalf. The evidence demonstrates that legislating for a small payments scheme would fail to address the underlying challenges preventing access to small value assets. Instead, the best approach is to focus on addressing the underlying barriers in the current system to accessing small value assets. To do this, the Government will work with the Court of Protection to improve application processing times and simplify court forms, and collaborate with OGDs, charities, and the finance sector to increase awareness of the MCA among parents and caregivers of young people without capacity as they transition to adulthood.
Importantly, this approach will also maintain protections and support for vulnerable people and their rights. The steps outlined uphold the principles of the MCA to empower individuals without mental capacity to make their own property and affairs decisions when possible and support their families and caregivers to make decisions in their best interest when necessary. This is essential for protecting vulnerable individuals from fraud, abuse, and coercion.
I hope the publication of this response will demonstrate the thorough consideration given to this issue and the impact on those individuals who lack capacity. As my predecessor, now the Minister for Disabled People, Health and Work, my hon. Friend the Member for Corby (Tom Pursglove), said when launching the consultation, these individuals must come first and should not lose the protections provided by the MCA. It is my belief that this response rightly honours that.
[HCWS588]
Marriage and Civil Partnership (Minimum Age) Act 2022: Commencement
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
My noble Friend the Parliamentary Under Secretary of State for Justice, Lord Bellamy KC, has made the following written statement:
Today the Marriage and Civil Partnership (Minimum Age) Act 2022 comes into force.
The Act makes two key changes:
It raises the legal age of marriage and civil partnership to 18 in England and Wales. This means that 16 and 17-year-olds are no longer able to marry or enter a civil partnership under any circumstances, including with parental or judicial consent.
It expands the criminal offence of forced marriage in England and Wales to make it an offence in all circumstances to do anything intended to cause a child to marry before they turn 18. For the forced marriage offence to apply, it is no longer necessary to prove that a form of coercion was used to bring about the marriage of a child. The expanded offence will continue to include ceremonies of marriage which are not legally binding, for example in community or traditional settings.
This important piece of legislation helps deliver on the Government’s commitment to tackle violence against women and girls. It also delivers on our pledge in the UN sustainable development goals to end child marriage by 2030. This Government are keen to make sure that children and young people are protected and supported as they grow and develop. Child marriage can deprive them of important life chances, and that is why we have taken action to stop it. The age of 18 is widely recognised as the age at which one becomes an adult and gains full citizenship rights.
These changes apply to England and Wales only. While marriage is a devolved matter, Northern Ireland are considering this issue and we hope that Scotland will also follow suit.
I am grateful to the hon. Member for Mid Derbyshire, Pauline Latham OBE MP for sponsoring this private Member’s Bill, as well as to the campaigners with whom she has worked. The Act and all of its supporting documentation is available at https://www.legislation.gov.uk/ukpga/2022/28/notes/division/6/index.htm
The Government’s statutory guidance and multi-agency practice guidelines on forced marriage have also been updated to reflect this legislation, and are available at https://www.gov.uk/government/publications/the-right-to-choose-government-guidance-on-forced-marriage
[HCWS584]
DRAFT JUDICIAL PENSIONS (FEE-PAID JUDGES) (AMENDMENT) REGULATIONS 2023
Mike Freer Excerpts(1 year, 2 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has considered the draft Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023.
It is a pleasure to serve under you this morning, Ms Nokes.
The statutory instrument before us amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the Fee-Paid Judicial Pension Scheme 2017. I shall refer to those as the fee-paid regulations and the fee-paid pension scheme respectively.
The fee-paid pension scheme currently only provides benefits for eligible fee-paid judicial service on and after 7 April 2000. The main purpose of the SI is to amend the fee-paid regulations to provide pension benefits for eligible fee-paid judicial service before 7 April 2000 and provide a remedy following the judgments in the cases of O’Brien against the Ministry of Justice, known as “O’Brien 2”, and Miller and others against the MOJ, known as “Miller”.
The fee-paid pension scheme commenced on 1 April 2017 when the fee-paid regulations came into force. It provided pension benefits for eligible fee-paid judicial service on and after 7 April 2000 that mirrored those for salaried judges under the Judicial Pensions and Retirement Act 1993, known as JUPRA. In 2018 the European Court of Justice found that eligible fee-paid judicial service prior to that date should also be taken into account for the purpose of calculating pension benefits. In addition, in 2019, the UK Supreme Court found that the time limit for fee-paid pension entitlement claims runs from the date on which the judge retired from judicial service, rather than the date on which they left the fee-paid office concerned. Even though the fee-paid pension scheme closed to further accruals on 31 March 2022, with pension accruals for all judges from 1 April 2022 being in the reformed Judicial Pension Scheme 2022, it is important that judges receive the pension benefits they are entitled to for their historical fee-paid judicial service. The instrument achieves that and provides a remedy for both of the judgments to which I have referred.
In order to achieve the required remedy, the SI makes a number of important changes to the fee-paid pension scheme. Most notably, salaried judges had access to different pension arrangements under the Judicial Pensions Act 1981 before the introduction of the JUPRA pension scheme in 1995. Those earlier arrangements for salaried judges had different accrual rates and scheme features and it has been necessary to retrospectively mirror those provisions and the associated eligibility criteria in the fee-paid pension scheme by introducing new “pre-1995” provisions. I hope that that is all clear—I jest, but it is quite a complex issue.
It is also important to update the schedule of eligible offices for the fee-paid pension scheme, to ensure that all judges who are eligible for a pension are included in the fee-paid regulations. Where eligibility has been established, those offices have been added to the schedule.
The SI also contains a number of other supplementary amendments that are necessary to ensure that fee-paid judges who are eligible for a pension settlement under the fee-paid pension scheme are given the correct settlement. One of those supplementary amendments is the inclusion of a facility for “small pension commutation”. Fee-paid judges do not always build up significant amounts of reckonable service, so we have included provisions that mirror the trivial commutation and “small’ pot” facilities that may be available in other pension arrangements.
The instrument also provides a further window for eligible judges—those with fee- paid service between 1995 and 2006—to purchase additional benefits in schemes constituted by the fee-paid regulations, or to vary purchases they have previously made. Again those provisions mirror those that were historically provided to relevant salaried judges.
The SI also updates the regulations that set out requirements for the payment of contributions by scheme members in respect of service prior to 7 April 2000; provides for a reconciliation of payments in lieu of pension, which have been made to judges, to formal entitlements under the amended regulations; and corrects some minor drafting errors in the existing regulations. Finally, the instrument regularises some partial retirement payments that were originally inconsistent with a restriction in the fee-paid regulations, holding that this option could only be exercised on or after 1 April 2017. That date restriction is also removed by the amendments.
We have undertaken on changes to the fee- paid pension scheme. The Ministry of Justice published a consultation on its proposals for amending that scheme on 24 June 2020, and 106 responses were received by the time the consultation closed on 18 September 2020. The responses were broadly supportive of the proposals, and on 10 December 2020 the Government response was published, setting out how the proposals had been refined to take account of those responses.
Officials at the devolved Administrations in Scotland, Northern Ireland, and Wales have been kept apprised of the development of the amendment regulations, in particular in relation to the offices whose jurisdictions are in those countries, and their views have been reflected in the drafting.
In the case of three fee-paid judicial offices included in the eligibility schedule, targeted consultations, including with office holders, were carried out to provide assurance that the correct service limitation dates are being applied. The service limitation date marks the point from which a salaried comparator judge became eligible for a judicial pension.
In conclusion, I would like to assure Committee members that the amendments to the fee-paid pension scheme set out in this SI are necessary to ensure that judges with historical fee-paid service get the pension benefits to which they are entitled and, together with other measures on judicial pay and pensions, those amendments will help to ensure that we can continue to support our esteemed judiciary.
Sir James Duddridge (Rochford and Southend East) (Con)
This process with judges and the McCloud judgment has triggered further things beyond judges’ pensions. It may disorderly and beyond the Minister’s remit, but could he write to the Committee to say what other public sector pension arrangements will be affected following McCloud? What will be the costs? Does it mean that we will have to come back for SIs for every single pension arrangement within the public service or, after this initial one is done, we can just come back once?
Mike Freer
My hon. Friend is correct that the McCloud judgment is an ongoing issue facing all pension schemes. The impact of that judgment is currently being worked through and any relevant changes that may be required will have to be brought forward for consideration. I will ensure that my hon. Friend gets a detailed letter explaining the processes.
Mike Freer)
First, I thank the shadow spokesmen for their contributions. They have raised a valid question and I am aware that the judiciary are somewhat exercised about it. I reiterate that the judiciary are valued, and I know that the Lord Chancellor is currently reviewing the options available under the Retained EU Law (Revocation and Reform) Bill to ensure that we comply with our obligations while maintaining the esteem in which we hold our judiciary. I cannot commit my right hon. Friend the Lord Chancellor, but I can tell the hon. Gentlemen that the issue is high on the agenda and it is one that we take extremely seriously.
Alex Cunningham
I am rather fascinated by that particular answer. It sounds as though the Minister does not actually know whether the regulations that we are amending today will be retained in the long term. I promised to give the Minister an easy time, but why on earth are we in this room amending regulations that could be confined to the bin, not to mention all the ramifications of that, within a few months? Surely we should have a date by which this issue will be sorted out.
Mike Freer
The amendments are needed to comply with existing legislation and to fulfil the existing commitments that we have given to the courts. That is why we are here, and why we need to pass the regulations. The scope of the Retained EU Law (Revocation and Reform) Bill and its impact on judicial pensions is being reviewed by the Lord Chancellor. I am happy to repeat that it is not the intention of my right hon. Friend to do anything that would undermine the esteem in which we hold our judiciary.
Question put and agreed to.
Oral Answers to Questions
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Rehman Chishti (Gillingham and Rainham) (Con)
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
The outstanding case load at Chester Crown court at the end of September stood at 626. We are taking action across the criminal justice system to bring down backlogs and improve waiting times for those who use our courts. We have introduced new legislation to give more flexibility for cases to be returned to the magistrates courts, we have ramped up judicial capacity, and we are investing a significant amount of funding for the criminal justice system.
Mike Amesbury
We are now witnessing a backlog of 60,000 Crown court cases and 350,000 magistrates court cases, all as a direct result of political choices to close 260 courts, one of them in Runcorn in my constituency—it became a cannabis farm next to a police station before being burnt down. Does the Minister actually believe that a four-year wait for victims to have their day in court is acceptable?
Mike Freer
The hon. Gentleman is right on one count: it is about political choices. If the Opposition stopped backing strikers, there might not be the current case backlog in our criminal justice system, which is a direct result of action by the Criminal Bar Association. It is this Government who are increasing the judiciary, who have settled the dispute and who are increasing court capacity, for instance by opening more Nightingale courts. We are taking the action; the Opposition back the strikers.
Rehman Chishti
In the context of addressing the backlog and engagement with the legal profession, when I spoke to leading criminal lawyers such as Sarah Forshaw KC, they raised with me a specific question: when will the Government appoint the chair of the Criminal Legal Aid Advisory Board? The board was set up in October 2022, nearly a year after the independent review conducted by Sir Christopher Bellamy. Is there to be another year’s wait before this appointment is made?
Mike Freer
The appointment of the chair following the independent review is currently being considered by the Secretary of State and an announcement will be made in due course. The board has met and continues to do its work. It is working effectively while we decide on the best form of chairing the meetings.
Alex Cunningham (Stockton North) (Lab)
The Government’s common platform roll-out has been nothing short of disastrous. Among many other problems, I have heard of dozens of prisoners being released without the tags that their licence conditions demand and other instances where individuals have been detained in custody beyond their release date. This is all avoidable chaos caused by Tory incompetence. Can the Minister explain why, despite the best efforts of the staff, the data systems simply do not work? Will he outline when he will finally get a grip and sort out this very wasteful scandal?
Mike Freer
I have to say to the hon. Gentleman yet again that if he wishes to return to the legacy systems he is welcome to argue that case, but those systems are at the end of their useful life. Since taking on this portfolio, I have gone out of my way to speak to the practitioners—the people down at the sharp end—and ensure that their concerns are reflected in all the technological enhancements. To describe the common platform as a disaster is simply untrue. This Government are investing in modernising our criminal justice system; Labour Members are nothing more than luddites.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
The hon. Gentleman raises an important point. The Department has been working closely with the Home Office and other criminal justice partners to deliver on our commitment to drive up quality standards in forensic science. Yesterday, the House debated the new statutory code of practice required by the Forensic Science Regulator Act 2021, which will grant the independent regulator statutory powers to investigate providers who fail to meet the required quality standards and who may put the interests of justice at risk.
Mr Sheerman
Is the Minister aware that the Chair of the Justice Committee and I are co-chairs of the all-party parliamentary group on miscarriages of justice? The group is very concerned at what leading forensic scientists are telling us about the running down of the forensic science service in this country—a service that must be at the heart of any good justice system. Some £55 million was put into the pot to improve forensic science over the past three years, but nobody knows where it has gone, where it was spent or when it will take effect to stop the loss of great experts that we are experiencing.
Mike Freer
Again, the hon. Gentleman makes an important point. This is a complex issue and I am more than happy to sit down with him and my hon. Friend the Chair of the Select Committee to discuss it in further detail, to get their expertise and to see how we can move things forward.
Beth Winter (Cynon Valley) (Lab)
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
We have launched the early legal advice pilot; we have invested in domestic abuse legal aid; we have invested money for housing reform and immigration legal aid; and legal aid spending is £1.2 billion per annum. The Government have a record of delivery on legal aid, investing in key areas, unblocking access and ensuring that money is well spent to protect those who need access to justice.
Beth Winter
With the number of civil legal aid providers falling from more than 2,100 to fewer than 1,400 in the past 10 years and with areas such as the south Wales valleys, including my Cynon Valley constituency, becoming legal aid deserts, what assurances can the Minister provide that he will not allow further closures of legal aid providers before the review of civil legal aid concludes?
Mike Freer
In fact, since the new standard contract was introduced in October, we have seen an increase in duty solicitors and firms taking on legal aid. We have restored some stability to the system. I understand the hon. Lady’s concerns, but I can tell her that the Legal Aid Agency monitors the issue of what are known as deserts closely to ensure that no part of the country is left uncovered.
Afzal Khan (Manchester, Gorton) (Lab)
The Government have repeatedly made political choices that have left our criminal justice system on its knees. They have recently found additional money to ensure that defence and prosecution barristers are given the 15% increase in line with the Bellamy review recommendation, but solicitors have been given only a 9% increase. That unequal decision puts at risk access to justice for victims, with more than 1,000 duty solicitors quitting in the last five years. Will the Lord Chancellor commit to funding all of Bellamy’s recommendations and put solicitors on the same footing?
Mike Freer
The uplift for solicitors and barristers has already started to be paid. The hon. Gentleman mentions duty solicitors and, as I have said, since the new contract has been in place, we have started to see an increase in the number of people taking on those roles and in firms taking on legal aid, so we are seeing the benefits of the investment in both the litigators’ graduated fee scheme and the advocates’ graduated fee scheme.
On the general investment in legal aid, I am aware of the concerns of the Law Society, with which I am having constructive discussions to try to find a way forward.
Andrew Western (Stretford and Urmston) (Lab)
Kate Kniveton (Burton) (Con)
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I am aware that this is an incredibly sensitive issue, and one that the Government want to get right. I can reassure my hon. Friend that the Government will be publishing the response to that review very soon—as soon as we can do so.
Mike Amesbury (Weaver Vale) (Lab)
Andy Carter (Warrington South) (Con)
Around 12 months ago, the Minister set out a plan to recruit a further 4,000 magistrates. Can he give us an update on how that is progressing? What steps is he taking to retain the most experienced presiding justices?
Mike Freer
There are a couple of things we are doing to achieve our target of 1,000 additional judicial vacancies this year, which is on track, and I am willing to share that with my hon. Friend. We have reformed judicial pensions today. In addition, we have increased the age limit, so that we can retain the best judiciary.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Is the Secretary of State aware that probably the greatest scandal in the justice system at the moment is joint enterprise? I believe that there are nearly 1,000 young people in prison with long sentences for it. He should take this cause to his heart. I will be here every time he is in the House, reminding him about joint enterprise, until he talks to the senior judiciary and gets something done about it.
Mike Freer
I am meeting the hon. Member for Edmonton (Kate Osamor) tomorrow to discuss this issue, and I am about to be briefed on the announcement that the Crown Prosecution Service made over the weekend on this subject. I will, of course, make sure that the hon. Gentleman is kept informed.
Sir Robert Neill (Bromley and Chislehurst) (Con)
The Secretary of State will know the importance of good, reliable data in driving justice policy and will recognise the work done by the Legal Education Foundation and its director Dr Natalie Byrom in this regard. Will he welcome its establishment of Justice Lab, a new dedicated research centre in this field, which is being launched in Dining Room A in this House tomorrow?
Justice
Mike Freer Excerpts(1 year, 3 months ago)
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Mike Freer
We have implemented the Bellamy review and, apart from one item—pages of prosecution evidence—the fee uplifts have gone through.
[Official Report, Eighth Delegated Legislation Committee, 26 January 2023, Vol. 726, c. 8.]
Letter of correction from the Parliamentary Under-Secretary of State for Justice, the hon. Member for Finchley and Golders Green (Mike Freer).
An error has been identified in my response to the hon. Member for Cardiff North (Anna McMorrin).
The correct response should have been:
Mike Freer
We have implemented the Bellamy review and, apart from two items—prison law and some elements of the LGFS—the fee uplifts have gone through.
Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023
Mike Freer Excerpts(1 year, 3 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023.
It is a pleasure to serve under you, Mr Vickers.
This draft statutory instrument will expand the civil legal aid scheme, making civil legal aid available in two new areas of family law and in certain domestic abuse proceedings. It will also broaden the acceptable evidence requirements for victims of domestic abuse.
The intention of the legal aid scheme, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—is to provide legal aid to those most in need. Over the past few years, several events and legislation have necessitated further consideration of legal aid provision, such as the post-implementation review of LASPO, the passing of the Domestic Abuse Act 2021 and the covid-19 pandemic.
Before turning to the amendments in the draft instrument, I will briefly set out how the legal aid scheme works in general. Civil legal aid is available to an individual if their issue is listed in part 1 of schedule 1 to LASPO. In most cases, an individual must pass a means test—a check on their financial eligibility—and a merits test to ensure that the taxpayer is not funding entirely unmeritorious cases. Evidence requirements must also be satisfied in certain cases, as set out by the procedure regulations. Those tests are to ensure that legal aid goes to the individuals who need it most.
Turning to some of the provisions of the draft order, four topics are covered. First, special guardianship orders, or SGOs, which are a court order to allow parental control over a child by individuals other than the parent. They are usually made to appoint members of the extended birth family or other significant people, such as a child’s long-term foster carer, as the special guardian. Currently, SGOs in private family proceedings, which are disputes between private individuals, are not within the scope of legal aid. Legal aid for SGOs are in scope only if sought in public family proceedings, generally proceedings brought by a local authority, such as care order proceedings.
Evidence submitted during the post-implementation review of LASPO in 2019 suggested that, without legal aid provision, prospective guardians might be deterred from seeking an SGO, and parents might not get the legal advice they required when faced with the loss of rights over their child. The Government accepted that evidence in 2019 and committed to making the amendment. Unfortunately, this amendment was delayed due to the covid-19 pandemic, but I am pleased that this draft statutory instrument has now been brought before us. It will bring SGOs in private family law proceedings within the scope of the legal aid scheme to deliver on that commitment and to ensure that families and guardians receive the support they need when seeking an SGO to bring stability to a child’s life.
Secondly, the statutory instrument will expand the availability of civil and criminal legal aid to reflect new protective orders and notices introduced by the Domestic Abuse Act 2021. A domestic abuse protection notice will provide victims of domestic abuse with immediate protection for up to 48 hours, and a domestic abuse protection order will provide a victim with longer-term protection from their abuser. Such notices and orders were created by the Domestic Abuse Act 2021 and will be piloted before a wider national roll-out. Currently, no provision for legal aid exists for such orders. However, legal aid is available for existing types of protective orders, such as non-molestation orders, so it is right that legal aid will also be available for victims of domestic abuse seeking a domestic abuse protection order to support those who are seeking refuge from domestic abuse.
Similarly, criminal legal aid will be made available to a respondent to a domestic abuse protection order or notice in the same way that it is already available for breaches of other kinds of protective injunctions, such as non-molestation orders. This will help the respondent to understand the requirements imposed by the order or notice.
Thirdly, the SI will amend the means and merits tests for parents contesting a placement or adoption order. A placement order authorises a local authority to place a child for adoption, and an adoption order gives the adoptive parents full legal status as the child’s parents. The current applicable means and merits tests differ, depending on whether a placement or adoption order is sought within care proceedings. This is contrary to the Government’s policy intention that parents or those with parental responsibility who are at risk of having their child permanently removed should be legally represented, regardless of whether the order is sought within care proceedings. The Government are grateful to the individuals and organisations who submitted evidence to us on this point, which has allowed us to make the amendment. The SI will therefore rectify the unintentional difference to ensure that the same means and merits tests apply to the parents in all instances when they are contesting a placement and/or adoption order.
Fourthly and finally, we are updating the supporting evidence requirements for victims of domestic abuse when they apply for certain legal aid services. One of the types of evidence that a victim of domestic abuse can currently provide is a letter from their medical practitioner after they have had a face-to-face appointment. The SI will also allow medical practitioners to provide a letter as evidence of domestic abuse after a telephone or video conferencing consultation, which will help make it easier for victims to evidence their claims and access the support they need. This change reflects medical working practices since the covid-19 pandemic, whereby appointments may be held over the phone or via video conferencing. It is right that medical practitioners who provide this vital service to victims of domestic abuse treat their patients according to their professional opinion, and not because of a requirement of the legal aid scheme. As medical working practices change and evolve with time, we will review the change after a year to assess how it is working in practice.
Before concluding, I would like to draw the Committee’s attention to the fact that the draft order was previously laid on 17 October 2022 but was subsequently withdrawn. The previous draft order contained provisions to realign access to immigration legal aid for victims of domestic abuse applying for indefinite leave to remain with eligibility under the immigration rules. That was to ensure that the Government’s policy intention of providing legal aid to these victims of domestic abuse kept pace with changes to the immigration rules. Unfortunately, a statement of changes to the immigration rules, which was laid on the same date in October 2022, directly impacted and contradicted the purpose of the draft order. The Secondary Legislation Scrutiny Committee also drew the previous draft order to the special attention of the House on that basis.
As a result of the inconsistency, the Government decided to withdraw the previous draft order. Hon. Members will notice that this draft order, laid in December 2022, does not contain any provisions relating to immigration legal aid. I want to reassure the House that my officials are diligently working with colleagues across Government to bring forward a further draft order in due course. We remain committed to ensuring that access to immigration legal aid for victims of domestic abuse is in line with the immigration rules.
The draft instrument before us expands the scope of civil legal aid in a number of ways to ensure that legal aid continues to be available to those most in need. Furthermore, the instrument sets out numerous amendments to ensure the original policy intention of LASPO is maintained, following recent events and other legislative changes.
Mike Freer
I will answer some of the points made in reverse order. The right hon. Member for Alyn and Deeside mentioned his constituents. I want to tread carefully, to ensure that I get this absolutely right. The family procedure rules committee is reviewing the existing procedures in case matters can be expedited to ensure that the families impacted are represented correctly. The issue he raised is very valid, and it has been well aired. My understanding—I will ask officials to write in more detail to ensure that we give him the correct advice—is that the SGOs will allow families to ensure that those who have been involved in murder are excluded from the decisions the right hon. Gentleman expounded. I will ensure that we give a full answer that is correct and in detail.
Turning to my hon. Friend the Member for West Bromwich West, may I say that, in this place, when we are making legislation, so often it is dry and technical. When colleagues are able to give a personal perspective, not only does it make the law better, but it brings the law to life. I thank him for his contribution, which cannot have been easy.
I will now turn to some of the points made by the shadow Minister, the hon. Member for Cardiff North. I am grateful for her support, and I always enjoy that speech—I think I have heard it several times now. We have implemented the Bellamy review and, apart from one item—pages of prosecution evidence—the three uplifts have gone through. I make no apologies for not putting further funds into a part of the payment scheme that all sides agree is antiquated and needs significant reform. On the review of civil and family matters, the consultation is closed. Our response is due imminently.
May I also correct a couple of assertions? Targeted intervention is not “tinkering”. I make no apology for being a careful steward of taxpayers’ money. I am not prepared simply to spray money at the legal aid system; I want to ensure that the intervention is targeted, so that it gets to the right people and gets the right result. We spend £1.6 billion on legal aid, half of which is on civil. The draft SI will inject a further £13 million. Last week, we injected a further £10 million of housing legal aid, and that is in addition to the recent £8 million of immigration legal aid. I firmly reject the assertion that the Government are not committed to the legal aid system. However, we are committed to ensuring that our investment is well spent, with targeted outcomes.
Question put and agreed to.
Draft Civil Legal Aid (Housing and Asylum Accommodation) Order 2023
Mike Freer Excerpts(1 year, 4 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has considered the draft Civil Legal Aid (Housing and Asylum Accommodation) Order 2023.
It is a pleasure to serve under your chairmanship, Mr Stringer. This statutory instrument will expand the scope of civil legal aid to allow early legal advice before court on housing, welfare benefits and debt issues for those at risk of losing their home. It will modify part 1 of schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, known as LASPO, to bring legal advice for certain housing, debt and welfare benefits issues in scope of legal aid funding. It also modifies secondary legislation to introduce an additional fee to remunerate providers delivering the new early legal advice.
The statutory instrument will ensure that failed asylum seekers who face a genuine obstacle to leaving the UK remain eligible for legal aid to support them in obtaining accommodation support from the Home Office. It will do this by amending schedule 1 to LASPO to link legal aid for asylum seekers to new support provisions being introduced by the Home Office. The draft order is to be made using the powers conferred by LASPO.
The statutory instrument lays the necessary foundations to ensure better wraparound legal support for those facing the loss of their home by enabling the replacement of the current housing possession court duty scheme, the HPCDS, with the housing loss prevention advice service, the HLPAS. The instrument is an important step in delivering a key commitment made in the Government’s recent consultation on reforming the way we deliver housing legal aid services.
Civil legal aid is available to an individual if the legal service they need is listed in part 1 of schedule 1 to LASPO. Legal aid may also be available on an exceptional basis where there would be a breach or risk of a breach to an individual’s rights under the European convention on human rights or any retained, enforceable EU rights; this is known as exceptional case funding, or ECF. Eligibility for legal aid, for both in-scope matters and ECF, is subject to statutory means and merits assessments. The means test sets out that if an individual’s capital or disposable income is above a certain threshold, they would certainly not be eligible for legal aid.
There are different merits tests depending on the type of case but, for most cases, the merits test provides for a cost-benefit test and a prospects of success test. If those tests are not met, funding will not be granted. Under the current arrangements, legal aid for social welfare law matters, such as debt, housing and welfare benefits, is limited to the most urgent circumstances—for instance, in the event of an individual losing their home through eviction or repossession. This is to ensure that legal aid is targeted at those who need it most.
However, during the post-implementation review of LASPO, we heard from respondents that the LASPO reforms, which came into effect in 2013, might have caused increased financial cost to individuals, their support networks and the Government. Respondents claimed that individuals experiencing social welfare legal problems, especially housing-related matters, were now unable to resolve their problems at an early opportunity, and were therefore likely to experience problems clustering and escalating, requiring costly intervention. Frequently cited examples in the review included increased use of court services as individuals were issued with possession proceedings; greater reliance on welfare benefits, and on temporary and permanent accommodation provided by their local authority following eviction; and increased use of health services for stress and anxiety.
That brings us to the scope of the amendment. Since 2019, my officials have not only considered the evidence provided in the LASPO post-implementation review, but worked closely with legal aid providers and other Government Departments to finalise the terms of the amendment. From November 2021 to January 2022, the Ministry of Justice ran a consultation on the housing legal aid reforms in the instrument, amending our proposals in response to feedback to ensure that the amendment presents a practical and effective way forward.
This order seeks to help individuals to resolve problems before they lead to housing loss by making legal advice on housing, debt and welfare benefits issues available from the moment the individual receives notice that possession of their home is being sought. It is hoped that intervention at that point will enable affected individuals to resolve matters, potentially preventing the loss of their home and reducing demand on the courts and other public services. The advice will not be means-tested, meaning individuals will not need to pass any financial eligibility test to receive it. If the instrument is approved, the advice will be available from 1 August 2023.
In addition to early legal advice, the amendment will continue to provide an “on the day” in-court duty service whereby the Government will fund representation for defendants in possession cases. Both elements will constitute the new housing loss prevention advice service. The instrument will introduce new fees to the remuneration regulations to ensure that legal aid providers can be paid for services provided under the HLPAS. It also amends the procedure regulations so that certain procedural requirements will not apply to the new scheme to allow for its efficient operation.
Let me turn to the amendment on legal aid for failed asylum seekers. It remains the Government’s policy to ensure that failed asylum seekers can obtain accommodation support when they are destitute and there is an obstacle preventing them from leaving the UK. This is a small amendment to ensure the continued provision of legal aid for failed asylum seekers obtaining accommodation. Currently, legal aid for asylum accommodation is tied to sections 4 and 95 of the Immigration and Asylum Act 1999. When the upcoming amendments to the Immigration Act 2016 come into force, they will repeal section 4 of the 1999 Act and introduce new section 95A, which has the same intention of ensuring failed asylum seekers can access accommodation support.
This statutory instrument simply tidies up the rules so that they are consistent with the amendments to the 2016 Act. It is a purely technical amendment to LASPO to ensure the Government’s policy intention continues to be met, and that there is no change in access to legal aid for asylum accommodation support. This part of the order will come into force only when the relevant amendment to the Immigration Act 2016 comes into force.
Before concluding, I will cover some Peer and Committee queries of which we have been made aware. First, I will draw attention to the issues raised by the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee. The order was previously laid but had to be withdrawn. Following the laying of the previous draft order before Parliament on 17 October 2022, the Joint Committee on Statutory Instruments noted that it was not clear when all its aspects were due to come into force. We accepted that point and decided to withdraw and re-lay the previous draft order, amending the commencement provisions to ensure clarity on when each part of the order comes into force.
The Secondary Legislation Scrutiny Committee queried how the Government intend to raise awareness of the early legal advice for housing, debt and welfare benefits. We take that matter seriously, recognising that it is often difficult to reach those most at need. Therefore, my officials will be working closely with the Department for Levelling Up, Housing and Communities and His Majesty’s Courts and Tribunals Service to ensure that legal support is signposted to individuals facing proceedings at the earliest opportunity.
In conclusion, the amendment will make early legal advice available to individuals facing the potential loss of their home, and it will ensure that the Government maintain their policy of providing legal aid to failed asylum seekers who need accommodation before they leave the UK.
Mike Freer
I am grateful for the shadow Minister’s contribution and support for this extension to legal aid. Let me answer a couple of his points.
I do not have the figures on civil legal aid, but I reassure colleagues and the shadow Minister that the recent injection of more than £135 million into the criminal legal aid system has, since the new contracts came into force in October last year, seen an increase in providers, firms and duty solicitors. It is, then, simply not true to suggest that the legal aid system is about to collapse. I expect the reform of the civil legal aid process to result in a similar improvement in provision.
Afzal Khan
The Minister says it is not true that the legal aid system is collapsing; perhaps he can explain why the courts have a 60,000 backlog and we see, year after year, a decline in the number of people who practise legal aid.
Mike Freer
Without getting into a debate that is not really to do with this statutory instrument, let me put it firmly: the outstanding case load in the criminal courts was on a downward trajectory until the industrial action by the Criminal Bar Association. The uptick in the backlog was a direct result of that action. Since the members of the Criminal Bar Association went back to work, we have started to see a downward trajectory in that case load.
On sustainability, I repeat that the early indications from the injection of more than £135 million into the criminal side of legal aid are that there has been an increase in the number of legal aid practitioners. I expect the same impact once we have reformed civil legal aid.
The particular changes in this statutory instrument will see a £10 million injection into civil legal aid, on top of the £30 million increase in the previous year. We are spending a significant amount of money to support people through civil legal aid. It remains a focus of the Department to reform all aspects of legal aid to make sure that it is both efficient and effective and that the money is well spent. I make no apology for that.
I thank the shadow Minister for his interest in my constituency. I reassure him that we have no shortage of a vibrant legal ecosystem in London. On top of that, the area of Finchley and Golders Green and the neighbouring seats of Hendon and Chipping Barnet are well served by excellent MPs.
Question put and agreed to.
Personal Injury Discount Rate: Call for Evidence
Mike Freer Excerpts(1 year, 4 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
My noble friend the Parliamentary Under Secretary of State for Justice (Lord Bellamy KC) has made the following written statement:
I announce today the publication of a Call for Evidence on exploring the option of introducing a dual or multiple Personal Injury Discount Rate (PIDR).
The PIDR is important in ensuring that claimants who suffer serious, life-changing personal injuries receive full damages, including for their future financial needs. It is the percentage figure used to help calculate how much a compensator—usually an insurer or body such as the NHS—pays to a claimant, in the form of a lump sum.
It is assumed that claimants will invest this lump sum and accrue a return on that investment and the PIDR represents what the real rate of return on this investment is expected to be.
Historically, the PIDR has always been set as a single rate however, it can be set as more than one rate if supported by the evidence. It has been argued that applying a single rate can result in unfairness to claimants and that moving to a dual or multiple PIDR could potentially be more accurate than using the current single averaged rate.
Moving to a dual rate means having more than one rate which can be targeted more specifically at claimants with shorter or longer-term injury awards. For example, it would allow for short and long-term rates to be set with claimants switching from one to the other after an appropriate length of time. Other approaches include separate rates for different losses, such as care costs or future lost earnings.
The Government Actuary explored this issue during the last PIDR review in 2019, noting that the implementation of dual rates might be considered as a means of providing fairer compensation for both short and long-term claimants.
However, the Government decided that there was a lack in the quantity and depth of evidence available at that time to conclude that a dual rate was more appropriate than a single rate. A commitment was, therefore, made to seek additional data and evidence on this issue to inform future PIDR reviews.
This Call for Evidence is being issued in response to that commitment. Its purpose is not to decide whether there should be a change from a single to a dual or multiple PIDR. Instead, the aim is to evidence and expert opinion on the pros, cons, effects and impacts of a change to a dual or multiple PIDR approach.
The Call for Evidence will be open for a period of 12 weeks and will close on 11 April 2023. A copy has been placed in the Libraries of both Houses and a response document summarising the key submissions and evidence provided by stakeholders will be published in due course.
Copies of the Call for Evidence can be found at:
https://www.gov.uk/government/consultations/personal-injury-discount-rate-exploring-the-option-of-a-dualmultiple-rate.
[HCWS499]
Justice
Mike Freer Excerpts(1 year, 4 months ago)
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Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
Like the hon. Member for Waveney (Peter Aldous), I have seen extraordinary situations with cases of serious sexual assault where the court case has been listed three years after the attack, in one case, with the victim saying, “I just want to give up and get on with my life.” This is a real challenge. Will the Minister outline what he is doing to get more judges in place, which is one of the brakes on this? When the Public Accounts Committee looked at this, we concluded on the evidence that, even with the interventions he has outlined, the Ministry will only be back on target from where it was with the backlog before covid by about 2024-25.
Mike Freer
The hon. Lady raises an important point. There are a variety of reasons why cases can be delayed. It is not just about the availability of the judiciary; sometimes it is the availability of defence and prosecution. There is a particular focus on trying to improve the number of cases that do not come forward because they are incomplete and not ready, and there is a massive campaign to improve the number of available sitting days and courts, but the most important thing is the massive recruitment of 1,000 judges for our criminal justice system.
[Official Report, 10 January 2023, Vol. 725, c. 407.]
Letter of correction from the Under-Secretary of State for Justice, the hon. Member for Finchley and Golders Green (Mike Freer):
An error has been identified in the response given to the hon. Member for Hackney South and Shoreditch (Dame Meg Hillier).
The correct response should have been:
Mike Freer
The hon. Lady raises an important point. There are a variety of reasons why cases can be delayed. It is not just about the availability of the judiciary; sometimes it is the availability of defence and prosecution. There is a particular focus on trying to improve the number of cases that do not come forward because they are incomplete and not ready, and there is a massive campaign to improve the number of available sitting days and courts, but the most important thing is the massive recruitment of up to 1,000 judges this year for our justice system.
Powers of Attorney Bill
Mike Freer ExcerptsFriday 9th December 2022
(1 year, 5 months ago)
Commons ChamberRead Full debate Powers of Attorney Act 2023 View all Powers of Attorney Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for promoting this vital Bill. I look forward to supporting him as the Bill completes its journey and, I hope, makes its way on to the statute book.
My hon. Friend did an effective job of laying out the provisions of the Bill and its purpose. It is immediately clear both from his words and from the contributions of Conservative colleagues—I will turn in a few minutes to the question raised by the shadow Minister, the hon. Member for Stockton North (Alex Cunningham)—that we all recognise that a lasting power of attorney is a vital resource and how important it is to ensure that the process has sufficient safeguards, while remaining accessible and efficient.
It is a deed that gives peace of mind and assurance to individuals, should there be a time when they lose mental capacity to make decisions for themselves. It gives them peace of mind that there is a pre-selected loved one or professional there to help them, whether to provide support and make decisions about managing their financial affairs, or to make decisions relating to their healthcare. A lasting power of attorney ensures that a person’s wishes and preferences can be taken into account, and reduces the stress and burden on families when capacity is lost unexpectedly.
My hon. Friend rightly highlighted in his opening remarks that we are living in a society with an ageing population. One of the implications of this is that we are likely to see an increase in people who lack mental capacity due to age-related conditions. For example, as my hon. Friend the Member for Broadland (Jerome Mayhew) mentioned, the Alzheimer’s Society says that there are currently around 900,000 people with dementia in the UK. That figure is projected to rise to 1.6 million by 2040, meaning an increase in the number of families who will find themselves faced with the reality of needing to make critical decisions about their loved one’s finances or welfare.
I know that those can be difficult decisions, talking about and preparing for the worst-case scenarios, including preparing for loss of capacity. It can be harrowing for people, their friends and their family. However, preparing early is the key to ensuring that life can continue in the way the person wanted. Putting in place a lasting power of attorney gives family and friends an insight into a person’s wishes and preferences and who they would like to make decisions on their behalf when they are unable to do so. Given the importance and significance of the document, and the gravity of the power it confers, it is absolutely right that we look at how we can make the process for making and registering a lasting power of attorney safer, simpler and more accessible.
I am grateful to my hon. Friend the Member for South Basildon and East Thurrock for setting out so eloquently the problems that exist in the current system. Members of this House will be aware that the Ministry of Justice has consulted on potential solutions to some of those challenges, and I am delighted that the Bill promoted by my hon. Friend reflects and builds on the Government’s response to the consultation.
Turning to the question raised by the shadow Minister, in terms of the capacity issue, the Government remain committed to the principle of supporting decision making but believe that that is provided best by the Mental Capacity Act 2005. The proposals in the consultation were carefully considered by the Government, but we still have concerns that a formal framework may be unnecessarily legalistic and would overlap with other provisions, such as advocacy.
I want to give a commitment to the House that we are seeking to ensure that the system is as simple and easy to navigate as possible. My hon. Friend talked about the current backlog in the Office of the Public Guardian, which is leading to longer waiting times for LPA registrations. That has been exacerbated by the limitations arising from the current legislative framework and the operational practice it requires. My hon. Friend explained that all LPAs are currently made on paper, which creates a huge logistical burden on everyone involved. It is also not reflective of the needs of users in today’s society, but I take on board the point made by my hon. Friend the Member for Devizes (Danny Kruger) about ensuring that, as we embrace technology, we must also ensure that there are sufficient checks and balances for those who may be vulnerable to abuse.
Frankly, people expect Government services to be available online, while also having the option to do things on paper when they prefer to. I am pleased that the Bill will create a digital channel to make an LPA, while also improving the paper channel for those who need or choose to use paper. A digital route will make LPAs more efficient and realise many benefits. It will allow for a speedier process, reduce the administrative burdens on individuals and automate many checks that should reduce the risk of errors in the paperwork that often delay registration and therefore the ability to use the LPA.
The Bill goes further than simply the digital and paper channels. By facilitating a more flexible system, the ability to move between the channels to create a single LPA will provide a far more flexible service and far more benefits to a wider group of people. Even those who want to use paper will benefit from others using digital elements in the process. The challenges faced by the OPG cannot be solved without reform, which is why I am grateful for the improvements that the Bill seeks to facilitate. I am confident that by introducing a digital process and automated checks and reducing some of the burdens on the organisation, we will build resilience into the process, meaning that people will be able to register their LPAs more quickly. It should also significantly reduce the chances of backlogs forming.
I assure the House that the vast majority of LPAs—there are currently more than 6 million on the register—are used properly to provide the support they are intended for. However, we know that LPA fraud and abuse takes place, and steps must be taken to address it. In 2021-22, the OPG investigated 2,408 LPA cases in response to concerns received. Of those, the OPG took remedial action in 649 cases. Such action can include an application to the Court of Protection to remove an attorney or revoke an LPA, as well as working with the attorney to provide education and guidance on how they should carry out their role.
Although the matters I have outlined apply to a very small proportion of the LPAs registered by the OPG, the impact on the individuals who experience abuse can be significant, which is why I am pleased that the Bill includes provisions to make the process more secure, especially for the donor, and lays the groundwork for further changes to be made in regulations.
In line with the Government’s consultation response, the Bill introduces identity checks as a requirement of registration. This is an important safeguard that will assure the OPG that those who claim to be involved in the LPA are who they say they are and reduce the risk of fraud by false representation. Regulations will support the change by specifying who will be subject to checks—the donor and the certificate provider—as well as how those checks will be carried out and which documents will be acceptable. I am committed to providing a wide range of options as soon as possible, given that the average age of a donor is currently 74 and most are over 65.
Provisions are being made to streamline and improve the objections process so that it is easier to lodge a concern with the OPG. That is a vital safeguard that will include those with a legitimate concern—such as local authorities, care workers and even the police—who previously did not have a formal route through which to express their concern.
My hon. Friend the Member for South Basildon and East Thurrock pointed out that the Bill gives us the levers to make further changes in regulations that will improve other protections, including the role of certificate providers. By having the certificate provider take on the role of witness, we are strengthening safeguards. In addition to this increase in safeguarding, by combining the roles of certificate provider and witness we will also reduce the burden on the donor.
I am pleased that the Bill also addresses the role of chartered legal executives. It cannot be right that a chartered legal executive—a legally qualified Chartered Institute of Legal Executives lawyer—who legitimately participates in the creation of a power of attorney should be rendered unable to certify as genuine a copy of the same document that they were instrumental in creating. The Bill will address that anomaly.
In closing, I reiterate how vital the improvements in the Bill are to support individuals to make a lasting power of attorney and to certify copies of such important documents. The efficiency savings will ensure that donors and attorneys have a better system, with the savings made reinvested to increasingly improve the service, so it is an all-round benefit.
Finally, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock and thank my hon. Friends the Members for Devizes, for Darlington (Peter Gibson), for Scunthorpe (Holly Mumby-Croft) and for Broadland for their contributions.