Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Pannick]

The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address—

[Lord Lester of Herne Hill]

I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

[Lord Pannick]

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

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[Lord Beecham]

My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.

The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.

In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,

“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]

If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.

For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.

There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.

[Lord Lester of Herne Hill]

My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.

The amendment begins:

“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.

Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.

The amendment goes on:

“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.

That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.

[Lord McNally]

My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips—perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege—but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.

I think noble Lords have exercised that procedure today.

--- Later in debate ---

[Lord Pannick]

I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—

[Lord Lester of Herne Hill]

My Lords—

[Lord Pannick]

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—