I will speak briefly to Amendments 81, 81AA and 88; they all deal with issues that have been covered recently by reports of the Joint Committee on Human Rights, of which I am a member.
I start with Amendment 88 on legal aid. In its report on the implications for access to justice of the Government’s proposals to reform legal aid, the JCHR
was very critical of the application of the residence test to children. We said that,
“we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced”.
This is becoming a bit of a pattern, I have to say. The report continues:
“Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services … We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC … we do not consider that the Government’s argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government’s access to justice obligations. We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families … We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test”.
In their response, the Government agreed to extend the exceptions further, but in my view, not far enough. Although any further exception is welcome, it goes only so far and does not meet the concerns of the JCHR about protecting children generally in relation to our obligations under the UNCRC. Having a lot of exemptions just complicates matters and I would have thought it was easier simply to say that it should not apply to children.
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The new clause set out in Amendment 81 reflects the concerns about destitution raised by the Joint Committee which are very similar to those expressed by the noble Earl, Lord Listowel. Again, the Government’s response did not deal adequately with our concerns, so they remain an issue. My noble friend Lord Rosser spoke to Amendment 81AA, and again the Joint Committee on Human Rights in its report on unaccompanied children and young people in the UK drew attention to the experience of the guardianship system in Scotland and suggested that it would be helpful to run a pilot of something similar here. It would not have to be exactly the same, but there should be a proper guardianship system. We waited many months for the Government to respond, which did finally happen recently. The response draws attention to the special advocate system of trial as if that solves the problem, but we have already heard why it does not. A special advocate is not the same as a legal guardian.
In addition to the arguments that have already been put, I should like to quote what ILPA has to say about this:
“‘Personal advocates’ without the requisite authority to make decisions on behalf of the child are not a solution to the problems legal representatives face because of the lack of an adult competent to give instructions in the case of a trafficked child”.
So while anything is better than nothing, this issue, which was raised over and again in the debates on the
Children and Families Bill and previously, still has to be resolved. I hope that we can manage to do that through this Bill.