Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Pannick Excerpts(13 years, 10 months ago)
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Lord Newton of Braintree
My Lords, perhaps I may intervene briefly once again in these debates, in complete support of the points that have been made, not least by the noble Baroness, Lady Grey-Thompson and my noble friend Lord Phillips of Sudbury but to a degree by everyone who has spoken.
As it happens, I have other recent brief experience of this in my capacity as a trustee, along with the noble Lord, Lord Rooker, of the National Benevolent Fund for the Aged, which is concerned with isolated elderly people. We have recently been lobbying Ministers about the apparent assumption that everyone can deal with things on the telephone or through the internet. That is essentially—dare I say it?—a middle-class presumption that does not necessarily apply to the areas that we are talking about now. To their credit, the Ministers whom we have lobbied are, I think I am right in saying, having a round-table discussion tomorrow on how the problem might be dealt with, and I recommend that the Ministry of Justice joins in.
Anyone who has been an MP will have been confronted in their surgery by people who just need to talk to someone, with a sense of the body language, to sort out one to one what may be important in their case, what is not relevant to an appeal and so on. I notice the noble Lord nodding. You can spend an hour listening to people who want to tell you their life story and it is only face to face that you can disentangle the points on which they might have a case. This is important to a lot of people who cannot really fend for themselves. I confess that even I, with a pretty high-quality, advanced education, still prefer, if possible, to go and see someone rather than talk to them on the phone because the body language and the feel of the conversation are important. Therefore, I do not think that we should underestimate these things.
In a curious way, the Government have acknowledged that in the briefing that I have here. It says that, although it is a telephone gateway, there has to be a careful assessment of whether the advice can be provided face to face or over the telephone. Indeed, they have already decided not to include in the single telephone gateway debt, in so far as it remains in scope, discrimination and special educational needs, as well as, I think, community care. What is it that makes these things so different from other forms of advice? There will be many community care cases, and there are also welfare benefit needs, as well as a need for advice on a lot of other aspects of people’s lives. Why is this to be exempted but not the other things? In a way, therefore, I think that the case has been conceded. The costs cannot be large and the need is great, and I think that we are entitled to ask the Government to reconsider this proposal.
Lord Pannick
My Lords, I added my name to the amendment and I did so for a very simple reason: this amendment is truly about access to justice. The concern surrounding the Bill is that legal aid should not be provided only by means that are simply inaccessible to a number of people, as explained comprehensively and persuasively by the noble Baroness, Lady Grey-Thompson.
The Earl of Listowel
My Lords, coming late to this debate, I regret that I may have missed some of its complexities, but I ask the Minister for reassurance on one point. I very warmly welcome the publication this week of the Government’s social justice strategy and the proposal for an early intervention foundation. The Secretary of State, Iain Duncan Smith, has recognised for a very long time how important it is to intervene early with families if their children are to have good and successful lives. Therefore, my concern over this issue is whether it is going to provide a further barrier to parents who need vital services. Will they find it difficult to attain those services and get access to the law, and will their children suffer as a result? I understand that children under the age of 18 will have access to a person if they need to speak to someone, but I am worried about disabled parents, parents who are very challenged and perhaps poor parents who, as a result of this change, may not get the support that they need and their children may suffer as a consequence.
Lord Beecham
My Lords, Amendment 136A is in another group of amendments that seek to modify the Government’s stance and I anticipate something short of a welcome from the Minister when he replies. Nevertheless, I want to raise these matters. The effect of Amendment 136A would be to permit the recoverability of ATE insurance in judicial review cases funded by a CFA. This is particularly relevant since at the moment there is no proposal to introduce QOCS for these cases. In addition, in any event claimants would have to fund their own disbursements via an ATE policy as well. Particularly in the absence of QOCS, recoverability remains an important issue in those cases.
Amendment 136B would effectively disapply the Bill’s provisions for breach of an employer’s duty leading to physical or psychological injuries—in effect, personal injury claims. I do not propose to repeat what was said in Committee or at Second Reading about the desirability of including personal injury cases within this proposal. The noble Lord will disagree but it strikes me as axiomatic.
Amendment 136C maintains the same approach in respect of professional negligence cases which can take a variety of forms, as we have said before, affecting members of the legal and other professions. The noble Lord will repeat the mantra that we should not be seeking to add to cases where the general principle is disapplied, but this is potentially important. In particular, the loss of money by professional negligence will be compounded by having to pay, potentially, a significant success fee out of damages, which does not seem at all reasonable.
Amendment 136D would give a complete exemption for clinical negligence cases as opposed to the partial exemption which is currently proposed. Amendment 139C would require the Lord Chancellor to make regulations to provide for cost orders to require payment where the applicant has taken out an insurance policy against the risk of liability to pay their own costs within a pre-action protocol period or 42 days in the absence of such a period. This is a potential stumbling block. In an earlier debate I referred to the potential scale of the cost of premiums to cover the cost of disbursements—leaving aside road traffic cases where it will be fairly nominal—ranging from £900 through to a very high claim of around £11,000 in respect of clinical negligence.
I am not anticipating a favourable response at this hour. It is a matter which will have be returned to if not at Third Reading then in future as we see an accumulation of cases in which claimants are put at a disadvantage or alternatively in which many people are deterred from taking proceedings in the first place by the potential cost of organising their own “after the event” insurance to cover disbursements—estimated by the Access to Justice Action Group to be something like 25 per cent of cases, following an extensive trawl through some 69,000 cases. That would represent a significant reduction in the number of claimants actually able to bring their cases before a tribunal. I beg to move.
Lord Pannick
My Lords, I am sure the Minister will tell us again that the general regime for success fees and “after the event” insurance must apply to all cases and one cannot have exemption for this type of case. But have the Government given any thought to whether it might be desirable to include in Part 2 a provision similar to Clause 8(2) of Part 1, giving some form of discretion to the Lord Chancellor to exclude from the scope of Part 2, in the light of experience of how Part 2 operates, any categories of case in respect of which it becomes apparent after this Bill comes into effect that the system is not working very well and is causing practical problems about access to justice? It might then be more sensible to go back, in relation to particular categories of case, to the old system under which the unsuccessful defendant would have to pay the success fee. Will the Minister give some thought to whether a general power for the Lord Chancellor to that effect might not be a good idea? Things might look rather different in a year or two from how they look now.
Lord McNally
My Lords, we have reached the stage of the evening when the noble Lord, Lord Pannick, not only asks the questions but gives the answers as well—cutting out the middleman, which is me.
I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.
We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration—with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Pannick Excerpts(13 years, 10 months ago)
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Lord Bach
My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.
Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.
Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,
“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
Lord Justice Stanley Burnton said:
“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.
Therefore, legal aid is necessary to ensure justice in an overly complex system.
The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,
“individuals will generally be able to represent themselves”.
As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.
I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.
Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.
Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.
By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.
Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.
This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.
I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.
Lord Pannick
My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.
Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.
I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.
Lord Clinton-Davis
I will not detain the House for long, but recall only too well the situation posed when I was an MP conducting surgeries on Friday nights. There were many occasions when I had to go to Heathrow to see people who were being deported. They were desperate. They had no alternative. I would not like the situation to be repeated, but I fear that it will be. The Government have to convince this House that desperate people are not to be accommodated at all. That situation is impossible to defend. The proposals being put forward by the Government today are so reckless that they ought to be defeated. It is absurd that ordinary people who are so desperate should have no alternative. That situation should not be encountered at all.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Pannick Excerpts(13 years, 11 months ago)
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Lord Pannick
Lord Pannick
My Lords,
“Access to justice is a fundamental part of a properly functioning democracy”.
That was the opening sentence of an article in the Guardian by the Justice Secretary, Mr Ken Clarke, on 19 December in relation to the Bill which your Lordships are now debating.
Amendment 1, in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, seeks to ensure that the Bill contains a statement of this uncontroversial and fundamental purpose of legal aid; that is, the promotion of access to justice. The wording of Amendment 1 is based on the existing Section 4(1) of the Access to Justice Act 1999. It is drafted so as to recognise, like that existing provision, that the duty to provide access to services to meet needs is not absolute. It is a duty defined of course by reference to the financial resources which are made available. The amendment does not impose an independent duty which trumps the specific contents of Part 1, which we are about to debate. On the contrary, it expressly states,
“in accordance with this Part”.
So the amendment does not require any further expenditure by the Government; it is entirely without prejudice to the important debates that we will have on the scope of legal aid.
So the only relevant question is whether it is appropriate to include in the Bill a statement of legislative purpose at the outset. Whatever views we take—and different views will be expressed—on the need to cut back on legal aid in tough economic times, surely it is vital for legal aid legislation to continue to recognise the purpose of what will remain, even under the Bill, very substantial public expenditure.
Under the Bill, the duties of the Legal Services Commission will be transferred to the director, working within the department. It is of considerable value that the director, the Justice Secretary and all those who will be associated with legal aid, whether as lawyers, clients or judges, continue to recognise that the purpose of legal aid is the promotion of access to justice. When the economy improves, we can all then reflect on whether the legislation should be amended the better to promote this purpose of access to justice.
This amendment states a principle which is recognised by the Justice Secretary himself. It is in terms which have been included in the legal aid statutes for many years. It does not require any further expenditure. An amendment along these lines was recommended by your Lordships’ Constitution Committee, of which I am a member. It was, if I may respectfully say so, very unclear from the Minister’s response in Committee why the Government were resisting it.
I am very grateful to the Minister and his officials for the patience and courtesy they showed me last week in discussing these issues. I regret that I was unable to persuade the Minister of the merits of this amendment, but I hope that other noble Lords on all sides of the House are persuaded that this amendment would improve the Bill and would do no damage whatever to the Government's desire to reduce public expenditure on legal aid. I beg to move.
Lord McNally
As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.
Lord Pannick
My Lords, I am grateful to all noble Lords who spoke in this important debate. I am also grateful to the Minister for his thoughtful response. However, I am as puzzled now as I was when moving the amendment as to why the Government are resisting it. I am puzzled in particular because the Minister very helpfully repeated what was stated by the Justice Secretary in his Guardian article: namely, that the Government are committed to access to justice as,
“a fundamental part of a properly functioning democracy”.
Therefore, nothing is in dispute on this subject between the Minister and those of us who spoke in favour of the amendment. There is no issue of principle.
The Minister spoke about the need for the Government to take tough economic decisions. Many noble Lords will be very sympathetic to him on that. We will debate very contentious issues as we go through Report. However, I say to noble Lords that the point has no relevance to this amendment, which expressly inserts,
“within the resources made available and in accordance with this Part”.
This is not a partisan amendment. The case for it—and indeed the case against it—does not depend on the views that noble Lords may have on the merits or otherwise of the Government’s proposals on the scope of legal aid.
I will make two further points. The Minister made the point that there is no constitutional right of access to legal aid in all circumstances. Of course, he is right. Access to legal aid has always been subject to conditions, criteria and limitations. We will come on to debate whether there should be further restrictions, conditions, criteria and limitations. However, a provision in the terms that I propose has always been part of legal aid legislation, even though it has never in absolute terms provided legal aid in all circumstances.
Lord McNally
Would the noble Lord not concede that the difference between this Bill and previous Bills is that previous Bills have been open-ended, so the kind of commitment that he talked about was reasonable, whereas Schedule 1 to this Bill specifies what we will do? He wants to insert a warm glow in the Bill, but putting warm glows into Bills is not good.
Lord Pannick
The Minister may disagree, but I take the view that because the Government now wish to specify areas where legal aid will continue to be available, it is all the more important that the statement of constitutional principle about access to justice continues to be part of the legislation, subject to available resources and the provisions of this part.
The noble Lord, Lord Thomas of Gresford, said that the statement of purpose was unnecessary since access to justice was not being abolished. He also suggested that the amendment contained unnecessary verbosity—a surprising allegation about an amendment that is 23 words long. I take the view that when Parliament redefines the scope of legal aid, and does so in provisions that will inevitably be controversial, it is vital that it should restate its recognition of this important constitutional principle. I hope that noble Lords on all sides of the House will feel able to support the amendment, which does no violence whatever to the Government's general objectives in relation to the Bill. I wish to test the opinion of the House.
Lord Hart of Chilton
My Lords, this amendment is in my name and those of the noble Lords, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Woolf. It arises out of concern expressed by your Lordships’ Constitution Committee, of which the noble Lord, Lord Pannick, and I are members.
The Bill will transfer responsibility for the allocation of legal aid from the Legal Services Commission to the Lord Chancellor’s Department. The allocation of legal aid will be the responsibility of a civil servant within the department who will be designated as the director of legal aid casework. The Minister made it clear in Committee that the intention is that the director should be independent in the performance of his or her functions, save that the director must comply with directions under Clause 4(3)(a) and must have regard to guidance under Clause 4(3)(b). The performance of the function will indeed require independence, given that many of the applications for funding will be in respect of claims, or potential claims, against government departments, including, of course, the Ministry of Justice itself. It is striking, then, that Clause 4 says nothing about independence.
At paragraph 15 of the Constitution Committee’s report we expressed concern as to whether sufficient guarantees of independence are provided in the Bill for the director of legal aid casework, who will have the responsibility within the department. Given the central importance of the functions of the director, it is appropriate to include in Clause 4 a recognition of this principle of independence. This will encourage the Lord Chancellor to focus his mind on this important question and ensure there is no doubt as to the role of the director. The amendment is not prescriptive. It leaves the detail to the Lord Chancellor. It recognises that independence is subject to directions and guidance. But it would, I think, be an improvement to say something about these vital matters on the face of the Bill itself. I beg to move.
Lord Pannick
My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.
Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.
Lord Faulks
My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.
The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.
Secondly, Clause 4(4) states:
“The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases”.
I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Pannick Excerpts(13 years, 11 months ago)
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Baroness Mallalieu
My Lords, I support the amendment. I do so in part having been around prisons in Hong Kong some years ago—I have no reason to think that the position has changed since—and seen considerable numbers of very old and very sick men who were there because there was no means of their ever being released. They presented very considerable difficulties for the prison service and they presented difficulties in their management during their term in prison because they had nothing to gain by behaving well during their time there.
It requires political courage to accept an amendment such as this—just as it requires courage on the part of a judge who is dealing with a case which has aroused great public emotion, just as it requires courage on the part of a parole board to deal with a prisoner who has been in the media and attracts media attention—but if we believe that people can change, and if we believe in reformation, then it is essential that there is something at the end of the tunnel for those who can demonstrate that they have come through the process and now put behind them any capacity to be dangerous. For that reason I very much hope that, difficult as it is, the Government will find the courage to put some provision like this in to the Bill.
Lord Pannick
My Lords, I, too, support the amendment, for all the reasons that have been given. It is surely inhumane to say to a prisoner that they will remain in prison for the whole of their life, other than in the most exceptional compassionate circumstances—which I understand to mean that they are dying—whatever progress they may make, however long a period may elapse. Surely it is also very damaging to prison order to have in prison this number of prisoners who have no incentive whatever to progress, to behave and to move towards a responsible approach.
The noble and learned Lord, Lord Lloyd of Berwick, mentioned that the Vintner case would inevitably go to the Grand Chamber. I very much hope and expect that the Grand Chamber will take into account the views of those in your Lordships' House who have expressed the opinion that this is indeed an inhumane way to treat prisoners.
I note that the amendment is drafted in terms of a discretion for the Parole Board. I would understand that to be the case because the Secretary of State faces this difficulty: either he retains an absolute position, whereby there will be no review; or he recognises that there will be a review, but by an independent body—the Parole Board. As I would understand it, the Secretary of State is simply unable, as a result of earlier European Court judgments, to take upon himself a statutory power to review the position and to decide on release after 30 years.
I also note that the amendment is drafted in terms of it being the duty of the Secretary of State,
“with the consent of the Lord Chief Justice and the trial judge if available”.
I would welcome assistance from the noble and learned Lord, Lord Lloyd of Berwick, when he comes to reply, as to whether it is his intention that after 30 years it should be the duty of the Secretary of State to refer the matter to the Parole Board only if the Lord Chief Justice and the trial judge—that is, both of them, if the latter is available—consent. Will he explain the purpose of involving the Lord Chief Justice and the trial judge? Is it intended that they should enjoy some discretion; and if so, pursuant to what criteria?
I respectfully suggest that it would be more appropriate to say that these matters should automatically be referred to the Parole Board after 30 years. That is a very long time. Of course the Lord Chief Justice of the day and the trial judge, if available, should be invited to give their opinions on what should happen to the individual, but I am troubled by the idea that there could be an impediment to the Parole Board even considering the matter after 30 years if, say, the trial judge thinks it inappropriate to do so. That is a drafting question. I strongly support the principle of the amendment, for all the reasons that have been given already, and those that I have added.
Lord Pannick
On public confidence, which the Minister rightly emphasised is so important in this area, why does he think that the public should not have confidence in a system in which, after 30 years, an independent parole board can ask itself whether it is any longer necessary for the protection of the public, and whether it would be in the interests of justice, that this person remains in prison. Why should the public not have confidence in a law along those lines?
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Pannick Excerpts(14 years ago)
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Lord Pannick
“Payments in respect of pro bono representation
In section 194(10) of the Legal Services Act 2007, after ““civil court” means”, add “the Supreme Court,”.”
Lord Pannick
My Lords, Amendment 171A is surely the least controversial of all the many amendments to this Bill that are being debated. It proposes an amendment to Section 194 of the Legal Services Act 2007. Section 194 is a very useful provision. It recognises that members of the Bar and solicitors frequently act pro bono for clients in legal proceedings—they charge no fee. This is of course to their great credit and to the enormous benefit of the legal system as a whole, as well as of their fortunate clients.
Some of our debates on this Bill have involved criticism of lawyers, some of it justified. We should take a moment to note that many lawyers act regularly in a wholly creditable manner by providing people with legal assistance when there is no funding, and without that pro bono assistance justice would simply not be done. One inevitable consequence of this Bill will be an increase in the demand for pro bono assistance from lawyers. When the pro bono lawyer succeeds for the claimant or the defendant, the unsuccessful other party cannot be ordered to pay the costs of the proceedings because the successful litigant has no costs, or limited costs, having received pro bono assistance. The losing side would gain an unfair benefit and indeed an unfair advantage in the litigation.
Section 194 addresses this situation. It confers power on the court in civil cases to order a person, normally the unsuccessful party, to pay a sum in respect of the notional costs to a charity prescribed by the Lord Chancellor. The charity prescribed is the Access to Justice Foundation, which distributes the funds paid to it to voluntary organisations providing free legal support for individuals and communities.
Lord McNally
The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.
Lord Pannick
I am very grateful to the Minister. I will of course withdraw the amendment. I am very grateful to the noble and learned Lord, Lord Goldsmith, for his support, as I am to the noble Lord, Lord Bach, for his. It would indeed be churlish of me not to understand and accept the indications given by the Minister in respect of the amendment, which is plainly receiving far warmer consideration than some of the other amendments that we have discussed. I have to say that I cannot understand what further consideration is necessary in relation to an amendment of this sort in the light of the factors to which this debate has drawn attention, but on the understanding that this matter is receiving proper attention, in the hope that the Government will be able to bring forward an amendment in appropriate terms on Report and in thanking the Minister, I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Beecham
My Lords, the amendments in this group refer to referral fees. Recent years have seen an explosion of growth among what might best be described as parasitic commercial organisations—claims management companies and the like—seeking to obtain part of the financial stream that flows when litigation occurs by charging for the referral of clients to lawyers. Paradoxically, it might be thought, some of this is fuelled by the very insurance companies that complain about the compensation culture and the costs of litigation. Clause 54 very properly seeks to prohibit referral fees to and by regulated persons, who will include claims management companies, lawyers, insurers and perhaps others. Perhaps slightly counterintuitively, for the purposes of the legislation a referral fee need not take the form of a payment, but could, for example, be an offer by a lawyer to take on work at a reduced rate or for no fee. However, the potential for abuse of the system is apparent, and the Bill seeks to address it.
The amendments tabled in my name and in the names of other noble Lords seek to improve the wording of the Bill. Perhaps I may briefly outline what they do. Amendment 164A would exempt not-for-profit organisations from the operation of the ban on referral fees. It would take them outside the category of regulated person for the purposes of the ban. Of course, there will be many membership organisations—charities, for example—that will come into that area. I understand that some charities refer people for legal and medical advice and any sums arising from those referrals go back into the work of the charity or the membership organisation. That seems a perfectly reasonable category to take out of the provisions of the Bill.
Amendment 164B is a consequential amendment making it clear that regulated persons would be businesses carried on for profit. It is a corollary of Amendment 164A, as is Amendment 164C, which is another consequential amendment. More substantively, Amendment 166 provides:
“A regulated person is not in breach of this section if … that person is a solicitor; and … the body to which the payment is made for the prescribed legal business is a registered charity that has been granted an exemption by the claims management regulation unit”.
Again, both the person making the payment—the solicitor—and the body receiving it—the charity—would be taken out of the scope of the provision.
We support Amendment 166ZA, tabled by the noble Lord, Lord Pannick. The noble Lord will of course address this matter, but the thrust of the amendment seems to be to except from the ban a referral from one solicitor to another. This can easily arise in the course of practice where a case, either from the outset or it becomes apparent, is somewhat beyond the experience and expertise of a particular firm but a good deal of work may have been done on it and in any event it is not unreasonable for a referral fee to be paid.
Perhaps more significant is Amendment 166ZB, in the names of the noble Lords, Lord Martin of Springburn and Lord Elystan-Morgan, and my noble friend Lord Collins of Highbury, which would take out of scope of the ban the relationship between trade unions and their members. I speak with long experience of these matters because I personally acted—the firm, for which I am now an unpaid consultant, continues to act— for a number of trade unions. The relationship there is not simply the passage of a name of a member but, as your Lordships will no doubt hear, one in which a good deal of administration is required and where the union is performing a service on the part of the member that will ultimately benefit the conduct of the case and therefore the solicitors involved in it. Again, it seems quite reasonable in that instance that a fee might become payable and it is unnecessary to bring that sort of relationship within scope.
Finally, Amendments 169 to 171 to Clause 56 are connected amendments. Instead of allowing the Treasury to make regulations enabling the Financial Services Authority to monitor and enforce compliance, they make this an obligation. Amendment 169 substitutes “shall” for “may” and Amendment 170 requires rather than enables the FSA to take action. Similarly, under Amendment 171 it would become a requirement for the Treasury to make rules outlining circumstances where payments are not to be treated as a referral fee. This echoes the Lord Chancellor’s powers proposed under Clause 55(8).
None of this seeks in any way to detract from the thrust of the Bill’s proposals but rather tailors them to the realities of the issues that the Bill seeks to address and to make better sense of what is in principle a sound proposal that the Opposition support. Accordingly, I beg to move.
Lord Pannick
My Lords, Amendment 166ZA in this group is in my name. I am grateful to the noble Lord, Lord Beecham, for expressing support for it.
The amendment would exempt solicitor-to-solicitor referral fees from statutory prohibition. I am puzzled as to why the Government think it is appropriate to impose a statutory prohibition on such referral fees. I am puzzled for two reasons. First, there is a public interest in solicitors having an incentive to transfer a case—with the consent of the client, of course—to another solicitor; for example, if the latter solicitor has greater expertise or if the former solicitor will not be able to deal with the case expeditiously. Secondly, any such referral fees from one solicitor to another are regulated by the SRA, which has ample powers to impose sanctions on either of the solicitors if there were any abuse of proper professional standards to the detriment of the consumer.
I ask the Minister—and it is a genuine inquiry—why, in the light of these factors, it is necessary or appropriate to regulate referral fees paid directly from one solicitor to another.
Lord Clinton-Davis
Does the noble Lord agree that it is common practice for one solicitor to transfer a case to a solicitor in another part of the country? Speaking from personal experience, I quite often had to deal with cases in London that were transferred from the north of England because it was more convenient to deal with the insurers in that way.
Lord Pannick
Yes, I agree. Of course, the Bill will not in any way prohibit such transfers; it will prohibit only payment. However, prohibiting payment will deter what may be a very sensible economic arrangement that provides an incentive to the first solicitor to transfer to the second solicitor a case which the second solicitor can deal with far more efficiently—in the interests of the client; that is the point. As I say, all these matters are properly regulated by the SRA. If the SRA is not properly regulating it is not doing its job. I ask the Minister why and also whether there is any evidence that the SRA is not doing its job properly in regulating referral fees in relation to transfers between solicitors.
Lord Martin of Springburn
My Lords, Amendment 166ZB is in my name and those of the noble Lords, Lord Elystan-Morgan and Lord Collins of Highbury. Of course, I am supportive of the other amendments that have been moved and spoken to.
I note that the other amendments mention payment to charities. When I signed up to the metal workers’ union as a young apprentice, it was regulated under the Friendly Societies Act. It was the same as the insurance companies such as the Co-op, the Salvation Army or the Wesleyan—they were charities. The trade union movement has always had a tradition of not only looking at wages and conditions within the factory but trying to go beyond that to help the member and his family. It knew that there was no point in just fighting for wages and conditions alone; there were many problems outside the place of work. Often that meant that, particularly when workers were involved in an accident, the unions had to get in touch with a solicitor who was willing to help, particularly in the bad old days.
Not so long ago in my native city of Glasgow, the Kelvingrove Art Gallery—which I would recommend anyone who visits Glasgow to go and see—had an exhibition of trade union banners. Trade union banners today tend to have big messages saying “Cameron out!”—and before that it was “Thatcher out!” or, even before that, “Heath out!”—but these old trade union banners were absolute works of art. They displayed exactly what the trade was all about. I remember the coach builders’ banner; one of the members had had an accident in the street and you saw the accident—the poor man had broken his leg—and another part of the banner showed him in bed and the officers of the branch turning up, and the caption underneath was, “When I was ill, you visited me”. My point is that there was always care within the trade union movement.
I know that many people, particularly in the media, can point to the salaries of the trade union leaders and make negative comments about them. But it must be remembered that the vast majority of people working in trade unions do so on a voluntary basis without any financial help.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Lord Pannick
Does the Minister seriously dispute that the provisions in the Bill will at least to some extent damage the ability of claimants in this area to obtain legal advice and assistance and will make it more expensive for them to do so? If he does not, is it really fair to impose these provisions?
Lord McNally
I do not know how lawyers will behave. I hope that they will behave a lot better than in some of the worst-case scenarios. People who go into litigation, even in cases like this, will to a certain extent be taking risks. If one were to listen to the arguments put by the noble Lord, we would have a legal aid system that paid for everything, and we cannot afford it. Therefore, we are trying to create with limited resources one that is fair. Of course, with his eloquence and ingenuity, the noble Lord can always pitch questions to me that make it sound as though I am saying, “No, let them eat cake”, which is certainly not our intention.
Lord Pannick
However, we are concerned here not with the expenditure of public funds but with a fair allocation of risks as between the defendant and the claimant. With respect, I do not understand the noble Lord’s point in relation to that. Is it really right that the interests of this group of claimants should depend upon the Government’s inability to predict how lawyers are going to behave? Surely this should not depend on how lawyers behave.
Lord McNally
This is not only about public funds, but it is about how you create—to use this term again—an architecture for this type of litigation that squeezes out from the system the inflation that went to the lawyers. That was identified by the Master of the Rolls, by the Lord Chief Justice and by Lord Justice Jackson. In trying to respond to that problem, I am fully aware of the hard cases, and I have spent most of the afternoon dealing with them. Of course hard cases are difficult to argue, but that is the central issue that we are trying to address. To succeed, we will have to stand firm against some of these hard cases, I am afraid.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
The bits that we are in favour of are in the Bill.
As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term “shot my fox”, but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons—that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs.
I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.
Lord Pannick
Does the Minister accept that claimants in judicial review cases will not be able to pay success fees, because victory in a judicial review almost never results in the payment of damages to the claimant?
Lord Pannick
My Lords, the noble Baroness, Lady Coussins, makes an overwhelming case here. I support her. I share the concern that she has expressed that, without the substance of the amendments that she proposes, there is a very strong risk that the Bill will fatally undermine the limited access to justice—it is very limited—that is currently available in practice, and I emphasise “in practice”, in relation to allegations of serious wrongs committed by British companies in developing countries. I very much hope that the Minister will listen favourably to what the noble Baroness has said and be able to accept the principle of the amendments. If there is concern that further safeguards need to be added into the amendments, and there may be, I hope that the Government will come back on Report with an amendment of their own.
Baroness Hooper
My Lords, it was drawn to my attention that the changes introduced by the Bill would make it almost impossible for foreign victims of human rights abuses committed by UK companies to access justice in this country. These are indeed sensible amendments that would protect access to justice for, as the noble Baroness has said, a very small number of vulnerable people affected by poor business practices while ensuring that there is no additional cost to the public purse.
Because of my particular interest in Latin America, I am aware of some of the cases quoted by the noble Baroness, Lady Coussins, in setting out the reasons behind the amendment. As has been said, she has made the case so clearly and fully that it is not necessary for me to go on at any length, but I wish to record my support for these amendments. I hope that the Government will give serious consideration to them.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Judd
My Lords, I support the amendment. As my noble friend argued so well in his introduction, it deals with the central character of the Bill. Inevitably in our deliberations we concentrate a good deal on legal ramifications. However, they are in a sense a means to an end. Surely what matters and what we should really be concerned about is the quality of our society. What is fundamentally wrong with the Bill is that it reduces access to justice and puts the burden on those least able to afford such a reduction.
The Government talk a good deal about their desire for partnership with the voluntary sector. I hope that this is a genuine, creative endeavour and not a cynical one. What is as clear as it could be to any of us who have worked in the voluntary sector is that as a result of the Bill the costs that will land on the budgets of that sector will increase very considerably, and the workload of the sector will inevitably increase. Therefore, before we come to final conclusions on the legislation, it is essential that we understand the ramifications, costs, burdens and adverse impacts that legislation of this kind is likely to have. I am very glad that my noble friends on the Front Bench are making a major stand on this issue. They are right to do so.
I will deal with another small matter and say that I support the utterly practical and sensible amendment tabled by the noble Lord, Lord Martin of Springburn. It is absolute madness—I refer to the economic rationale of the Bill—for us to embark on legislation of this kind without a comprehensive, authoritative and extensive review of what the cost to the courts system will be. If as a result of Parts 1 and 2 there will be an increasing number of personal litigants without professional support, over the years the cost of the administration of justice will increase very considerably. We need this information before we can make an informed decision.
The amendments go to the essence of what deeply concerns many of us about the implications of the Bill. I hope that my Front Bench will pursue the issues as vigorously as they have raised them.
Lord Pannick
My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.
As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response to the concerns that have been expressed on this amendment, and will be expressed in relation to other amendments that we will be debating today, than he felt able to do on the first day in Committee on this Bill.
Lord Howarth of Newport
My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:
“Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice”.
Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.
It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated:
“Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole”.
That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.
I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.
My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.
I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by “young people”? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour.
My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation:
“The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems”.
Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same.
I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:
“We consider that these issues”—
these are financial issues for people in poverty—
“are of lower objective importance … than, for example, fundamental issues concerning safety or liberty”.
Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of “lower objective importance”, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?
Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard, when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor.
I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,
“the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance”.
We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Pannick
“( ) The Lord Chancellor must ensure that—
(a) the person designated as Director has such qualifications and experience in relation to securing access to legal services for individuals as the Lord Chancellor considers appropriate, and(b) the terms on which the designated person holds the post of Director are, as regard the making and termination of the designation and otherwise, such as to ensure the Director’s independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director’s functions under this Part.”
Lord Pannick
My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. The amendment arises out of a concern expressed by your Lordships’ Constitution Committee, of which I am a member, and it relates to Clause 4, which will transfer responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will henceforth be taken by a civil servant, who will be designated by the Lord Chancellor as the director of legal aid casework.
At paragraph 15 of the Constitution Committee’s report, we expressed a concern as to whether there are sufficient guarantees of independence in the Bill for the director of legal aid casework. The Constitution Committee also noted with concern that Clause 4 says nothing about the qualifications and experience required for such a post. The Joint Committee on Human Rights has, in its report, similarly expressed concern about institutional independence from the Government so as to prevent an appearance of a conflict of interest when decisions are taken about the availability of legal aid and the Government’s decisions may be challenged.
Given the central importance of the functions that will be conferred on this director, it is, I suggest, appropriate, and indeed necessary, to include in Clause 4 provisions that recognise the need for the Lord Chancellor to focus his mind on these issues of qualification and independence. Amendment 13 is not prescriptive as to the details; it leaves the detail to the Lord Chancellor. However, it is essential that this important issue of principle is addressed in the Bill. I beg to move.
Lord Woolf
My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.
The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.
It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.
I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.
Lord McNally
I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.
Lord Pannick
My Lords, I am grateful to the Minister for the constructive approach that he has taken to the important issues raised by this debate. I would ask him to reflect with the Lord Chancellor on the central points which have been made by noble Lords on all sides of this Committee, and to whom I am very grateful. A civil servant—the director—is going to have the crucial task of determining who has effective access to justice. The director is going to do that, often in contexts where the Government are the potential defendants. It is then striking, as many noble Lords have pointed out, that Clause 4 says nothing express about ensuring the independence of the director. This is a particular concern, as noble Lords have emphasised, in the light of the uncertainty as to the limits of Clause 4(3).
Clause 4(4), as the noble Lord, Lord Thomas of Gresford, has emphasised, is not sufficient protection because it does not prevent directions from the Lord Chancellor to the director about categories of cases, or indeed as to the general approach to be adopted by the director. As I understood it, the Minister's response to this was that the Government's position today—although the Minister emphasised that that may change—is that they are as keen on independence as everybody else. If I understood him correctly, he said that independence is a fundamental tenet of this arrangement. The position of the Minister and the Government today is that Clause 4 is designed to achieve that objective and therefore these amendments are unnecessary.
The noble Lord will appreciate, and I hope that he will communicate this to the Lord Chancellor, that around this Committee the view is taken that, with great respect, that is not good enough because noble Lords prefer an express statement of the basic constitutional principle on which we are all agreed as to independence. Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.