Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
(10 years, 9 months ago)
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Lord Faulks
That the draft Regulations laid before the House on 25 November 2013 be approved.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013.
The Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013 amend the Prosecution of Offences Act 1985 to provide that acquitted defendants who have been found to be ineligible for legal aid as a result of the new Crown Court financial eligibility threshold of £37,500 or more annual disposable household income can receive a payment from central funds in respect of their private defence costs.
The purpose of the regulations is to introduce an additional exception to Section 16A of the Prosecution of Offences Act 1985 and the general rule that a defendant’s costs order may not require payment out of central funds in respect of the accused’s legal costs. This amendment allows acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to apply for a defendant’s costs order and to receive a payment from central funds in respect of their private defence costs at legal aid rates. This is in line with the changes made in respect of acquitted defendants in the magistrates’ court which were approved by Parliament during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The Prosecution of Offences Act 1985 makes a number of provisions in relation to costs in criminal cases, including in relation to defence costs. Section 16A, in relation to legal costs, provides certain exceptions to the general rule that a defendant’s costs order may not require the payment out of central funds of an amount in respect of the accused’s legal costs.
The draft instrument under consideration makes provision for an additional exception under Section 16A. It allows acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to receive a payment from central funds in respect of their legal costs. Such defendants would be reimbursed at the rates and scales set out by the Lord Chancellor in guidance, as provided for by Regulation 7(6) of the Costs in Criminal Cases (General) Regulations 1986.
The amendments introduced by this instrument are an important element of the introduction of a financial eligibility threshold in the Crown Court, to ensure that the wealthiest defendants would no longer automatically be provided with legal aid up front at public expense. The threshold has been set at a level where we believe the majority of defendants should be able to pay the defence costs of Crown Court cases privately, as set out in the Transforming Legal Aid: Next Steps response paper. There will, however, be a review mechanism to ensure that those individuals who really cannot pay their defence costs privately can be represented in court. This will be similar to the existing hardship scheme in the magistrates’ courts. As I outlined earlier, acquitted defendants, subject to your Lordships’ approval, will receive a payment from central funds at rates and scales set by the Lord Chancellor.
To conclude our proposals on criminal costs, the Government believe it is right to include an additional exception to allow acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to receive a payment from central funds in respect of their legal costs. Even though this will cost the public purse at a time of significant pressure on departmental budgets, it is a fair change to make given that such defendants will need to pay privately.
I now turn to the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013, which amend the Civil Legal Aid (Merits Criteria) Regulations 2013. They amend the merits criteria that apply in applications for civil legal aid to prevent funding for cases assessed as having borderline prospects of success. It is important to note that this affects only certain applications for a specific form of service. The purpose of these regulations is to prevent cases assessed as having borderline prospects of success from receiving civil legal aid in the future.
In order to be funded, civil legal aid cases must pass the applicable merits test, as set out in the 2013 regulations. The aim of the test is to ensure that funding is targeted at the cases that most justify it. The prospects of success test is just one element of the overall merits criteria that civil legal aid cases are subject to, but it is an important element. Not all applications are subject to a prospects of success test. Only applications for full representation, a specific form of civil legal service, are directly subject to a prospects of success test. Therefore applications for legal help—the advice and assistance level of legal aid—and other types of service are not subject to this test. Also, there are certain categories of case, for example certain family and mental health cases, where the test does not apply. It is important to note that these cases are not affected by this instrument.
However, where the prospects of success test applies, its purpose is to ensure that taxpayers’ money is targeted at the cases that most justify it. It also ensures that weak cases are not funded. Currently, certain cases assessed as having borderline prospects of success can be funded in limited circumstances. The regulations that your Lordships are considering today will remove funding for cases assessed as having borderline prospects of success. I am aware that concerns have been raised about our policy on borderline cases. Let me deal with one or two of those. I recognise that there is some unease over the effect these regulations might have on the development of case law and the funding of so-called test cases or those with the potential to advance the common law. Legal aid cases have indeed led to the development of case law in the past, but that alone is not sufficient justification for legal aid to be granted in cases that do not have at least a 50% prospect of success. In addition, I do not think that our proposal will hinder or prevent the development of case law. The arguments are likely to be strong for such a development to be warranted.
Lord Bach (Lab)
My Lords, I speak to my amendment to the second Motion that the Minister has just spoken to. My amendment would add,
“but that this House regrets that the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013 exclude some people from legal aid where their case turns on a point of law”.
Before setting out my arguments—I hope reasonably briefly—I will start by warmly welcoming the Minister on behalf of the whole House, and congratulating him on his new position as Minister of State in the Ministry of Justice. It is an appointment widely welcomed by noble Lords around the House. He is a widely admired senior lawyer with great experience both in the courts and in this House, where he has taken an important role in our debates on all justice matters, not least the LASPO Act and the orders flowing from it.
He has also served on the Joint Committee on Human Rights and, just over a month ago, we remember his important speech in the debate instigated by the noble Lord, Lord Carlile, on very high-cost cases in criminal trials. I have two final points on that. Our welcome today is more than just the usual good manners of this House. It is a genuine welcome from all around the House to him in his important new responsibilities. Secondly, we wish him good luck and well in his new job.
This brings me, perhaps not before time, to my Motion. Many of us believe that the Minister has rather courageously taken on his new responsibilities at a time when his department, and particularly the Ministers in it, have tended to indulge in a series of attacks on many of the best and most important features of our legal system, in the field of civil and criminal law. The consequence of the removal of legal aid from social welfare law, the over-the-top attack on criminal fees, the proposals on judicial review, or the proposed residence test, has been to lessen the reputation of our legal system in a number of ways. Most importantly—I think this is felt around the House to a greater or lesser degree—these measures attack the overriding principle that all those who live under the rule of law should have at least some access to quality justice when they need it in the course of their lives.
Unfortunately, this order fits that pattern only too well. Since it was proposed in Transforming Legal Aid: Next Steps, it has been criticised almost universally and condemned by a very wide variety of expert opinion, from judges to practitioners to academic lawyers and, of course, by the Joint Committee on Human Rights itself. Alas, in spite of this hostility, the Government have decided to go on regardless, and this order will take effect in one week’s time on 27 January.
Why has there been this criticism? Apart from serious doubts about the Government’s assertion that it will affect 100 cases and save £1 million per year—the doubts are on the basis that the Government have provided no evidence at all for that conclusion—practitioners sensibly argue that both in terms of possible litigants in person and extra adjudication appeals that may be necessary if the order is implemented, the savings may be nonexistent.
The crucial reason that this is such a damaging step can be found in the measured words of this House’s Secondary Legislation Scrutiny Committee in its 21st report of Session 2013-14, which states that,
“the House may wish to consider whether it is appropriate to exclude someone from legal aid where the issue turns on a disputed point of law, circumstances in which the advice of a skilled lawyer is most necessary. The definition of ‘borderline’ has not changed from the previous Regulations but the use to which it is being put has. Previously dispute over law or expert evidence was grounds for including a weaker case in the scope of legal aid and enabling someone to obtain better advice, now such cases are to be excluded from support”.
Or, as the Bar Council put it in its submission:
“Removing funding of cases assessed as having a ‘borderline’ possibility of success will see funding removed for cases critical both to individuals and areas of public policy. Many important cases will have been assessed as borderline but nevertheless have gone on to win. Others will have been lost. That fact does not do any damage to public confidence in legal aid. Such cases will have ensured access to justice where something really important was at stake”.
Practitioners have included examples from many branches of civil law where, without the grant of legal aid, cases that have changed the common law would never even have been before the courts. Not only would injustice have been done to an individual citizen—not an unimportant consideration—but the law as it was thought to be would have remained frozen in time, even though it was decided it was wrong.
Many examples have been given. Bindmans, the leading solicitors, argued in its response to the consultation:
“‘Borderline cases’ often constitute seminal test cases in which the courts have clarified some of the most difficult issues, for example the right to die with dignity, the ban on gay people serving in the army, systemic abuse by armed forces, and whether soldiers serving overseas should be protected by the Human Rights Act”.
It went on:
“In a jurisdiction without a written Constitution or codified laws, and in which law is thus based on and developed through case law, such test cases are an essential part of the legal system”.
There are many examples; housing law is perhaps one of the best. There was a series of three successive cases, all financed by legal aid, which followed the vexed question of the balance and the legal conflicts between human rights, respect for a person’s home and the rights of property. I venture to think that there may be some noble and learned Lords in the Chamber this evening who will remember these cases quite intimately. These cases led in the end to the Supreme Court coming to a view in 2011, in the Manchester City Council v Pinnock case, which effectively changed the law.
This series of cases on a matter of great public importance was possible because of legal aid. I suggest that if these regulations had been in force then, it is unlikely that those cases, which have both clarified and moved the law on, would ever have reached the courts. As the organisation Justice has said, “borderline” does not mean without merit. These are not unclear cases which we are talking about, where further information is necessary before the success criteria of the means test can be determined. These are cases where there is a different legal opinion about issues of importance—and any legal system, I argue, that does not allow them to be determined is surely defective.
Richard Drabble QC, a practitioner of vast experience in this field—and who, significantly, has appeared for successive Administrations on the one side as well as for claimants on the other—argues strongly against this regulation. He points out that in the case of Anufrijeva against the Secretary of State, which was a benefits case, the result of which affected large numbers of claimants, the lower courts and the Department for Work and Pensions had become wedded to a view of law which the majority of the Lords—the Law Lords, he means—ultimately held to be constitutionally improper. He makes the point that not only did the Executive have the freedom to test the law, which they will of course continue to do under these regulations, but that surely so should claimants, too. He warns:
“The system will or may become institutionally ‘pro-executive’”.
In its response to this consultation, the Council of Her Majesty’s Circuit Judges stated its disagreement with the proposal in what I can only describe as broad terms. It stated:
“The regulations which the proposal would amend were made in 2013 after a consultation. We take the view that no compelling case has been made … to alter them now … We must express our great concern that access to justice will be denied to individuals who may well have a completely valid claim”.
It went on:
“The law would become fossilised if ‘borderline’ cases were not supported by public funds. The role of legal aid in past cases in refining and clarifying common law and statute should not be underestimated”.
I end by arguing that the case for this regulation has just not been made by the Government, whether on cost grounds on the one hand or grounds of principle and practicality on the other. The Government should have listened to the many serious and informed voices criticising this measure. Alas, up to now, they have refused; and continue to bring in measures that are gradually, step by step, tending to weaken our legal system. This measure, I believe, is one of them. That is why I thought it right to put down my amendment to the Motion, so that at least a debate can take place before the Government move forward.
Lord Pannick (CB)
My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.
I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,
The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.
For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.
There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.
Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.
Lord Carlile of Berriew (LD)
My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.
The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.
A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.
As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.
Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.
What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.
Baroness Lister of Burtersett (Lab)
My Lords, as a member of the Joint Committee on Human Rights and, I suspect, the only non-lawyer to take part in this debate, I thank my noble friend for moving the Motion of Regret. I shall make a couple of points based on the JCHR’s report—with which the Minister, as a former colleague on that committee, will of course be very familiar,. The Government’s gain is the JCHR’s loss. I shall spare him any further blushes. As has already been said, the Government estimate that about £1 million will be saved as a result of these changes. Such a small, or as the Minister called it, modest sum in public expenditure terms comes well within the margin of error, and indeed the JCHR questions the accuracy of this estimate. My noble friend suggests that there could be no saving at all.
Whatever the savings actually are, clearly they are very modest and we have to ask whether it is proportionate to put at risk the rights of access to the courts where human rights issues may well be at stake, as underlined by the Bar Council in its evidence to the JCHR. It said that of all the legal aid measures,
“this one is … likely to have the most immediate and adverse effect on human rights”.
It gave as examples the prospect of loss of one’s home or of one’s children being taken into the care system. These are very fundamental issues for ordinary citizens. ILPA has also raised its concerns to your Lordships, particularly with regard to asylum and immigration cases. It raised particular concerns about separated refugee children, and I would welcome an assurance from the Minister that that group will be protected.
Lord Woolf (CB)
My Lords, we have heard powerful arguments advanced, and I shall try to avoid repeating those arguments. I commence by first thanking the noble Lord, Lord Bach, for bringing his Motion of Regret in respect of civil legal aid regulations. I strongly support those arguments. I also echo the support that has been given already to his remarks specifically in welcoming the noble Lord, Lord Faulks, to his new responsibilities. Those members of the judiciary on whose behalf I shall say a few words on this matter, because I think that they are particularly affected, would all welcome the fact that a leading counsel of his distinction is now a member of the government team dealing with justice matters—and they are justice matters that I want to speak about.
Our justice system is of course based on the common law. For many years I was a common law judge, who has a special responsibility that does not apply to the same extent to the civil legal system in clarifying and developing the law from which we all benefit. I differ from the Minister in his approach, which was ably addressed a few minutes ago by the noble Baroness, Lady Lister, in her useful remarks. The law is not there for one section of the community; it is there for us all. We all benefit from the protections that it provides and the setting that it provides for all our activities. The judiciary is concerned that all of the public should have access to justice. That must mean a justice system that is fit for the age in which we live and has developed in accordance with the way in which a common law system can develop, singularly because of the use of precedent, which is such an important part of our system. When the noble Lord, Lord Faulks, opened his case for approving these regulations, I was not clear whether he was saying that there would be any discretion to grant legal aid in the case of an issue which was obviously important for the courts to decide, but which would need the assistance of able counsel in order to decide the case. Sometimes that can be self-evident. The cases we are primarily talking about are dealing with points of law. In the case of points of law, it is particularly important that the courts should have the assistance of appropriate counsel to deal with the type of case before them.
In our system we now have a limited number of judicial assistants to help us in our work of doing justice, but they are very much a limited assistance. Our system does not compare with systems such as that in the United States, or even the system in Canada, because there they hear the appellate judges, who will normally have the responsibility of dealing with the developments in the law to which I have referred and are given much more assistance by very experienced young lawyers than is available in our courts.
Our courts depend on the judges themselves doing the research with the assistance of counsel. If they do not have before them counsel of the necessary ability to deal with this very small number of extremely difficult cases, the quality of those judgments will suffer. It is in that area that the quality of arms, to which reference has already been made, is of singular significance. I wonder, and doubt whether, the Government have appreciated—because of the justification which they have advanced for this change—the importance of the courts having the assistance of advocates of the ability needed to ensure that the arguments on both sides of a case are properly deployed when the case is one of those peculiarly difficult cases, so that it is impossible, perhaps on both sides, to say what the prospects of success are. These are therefore the cases which would very much come within the small group which these regulations could affect.
For that reason I ask the Minister, new to his responsibilities, at least to give the House an assurance that the matter will be considered from the point of view of the judiciary. If ways are not found to assist in this small number of cases, I have fear for the quality of justice in this country.
If a case is one where a lot of money is at stake, where large awards of damages will be available, then it is possible to come to arrangements whereby litigants can be spared the burden of carrying the weight of the costs involved in conducting the litigation themselves. Funders are available now. However, in the small group of cases about which we are talking no such funding is available. There is nothing which the funders would gain because there will be no judgment from which they can benefit at the end of the day.
In that situation, I say that one should look at the matter and ask oneself whether this is a case where the wrong target has been drawn in order to try to achieve noble objectives. If it has, it is very important, even though it is late in the day, that action is taken to ensure that the system of justice in this country does not suffer in consequence.
Lord Phillips of Sudbury (LD)
My Lords, I do not propose to go over the ground that has been so ably ploughed by the speakers thus far. I am afraid that I am not going to lend my noble friend the Minister any solace, because I fear that I, too, am strongly of the view that the measure that deals with borderline cases—the merits criteria statutory instrument—is flawed, and it is flawed in a profound cultural way. As others have rightly said, justice is not like most other forms of government expenditure; it goes to the very heart of our society.
As I said, I shall not replough old ground, although I should like to remind the House that in the consultation, which lasted for only two months, there were 16,000 written submissions, which is quite extraordinary. The vast majority of them were, as the noble Lord, Lord Bach, has already said, against these provisions. I simply want to quote paragraph 234 of the report of the Joint Committee on Human Rights issued on the 13th of last month. It is the seventh report of the Session and it deals with the matters that we are talking about tonight. In referring to the present situation—the status quo—it says:
“We were told by our witnesses that the Legal Aid Agency scrutinises the merits of borderline cases closely, and funds very few borderline cases, in effect exceptional cases”.
That is the point. Only 100 or so cases are involved, and I think that the sum of legal aid estimated to be at stake is around £1 million. Therefore, they are already exceptional cases and we must realise that they reverberate throughout the system. As the noble and learned Lord, Lord Woolf, has just reminded us, under the common law system of precedent, one of these cases can affect thousands of cases, which will not be brought as a result. Therefore, there is that to consider.
My other point is that the Joint Committee report is absolutely unequivocal about these borderline cases. It is worth reading—and I am sure that most noble Lords here tonight have read—the fourth chapter and the three conclusions at paragraphs 43 to 45 of the final recommendations and conclusions. I urge the Minister—perhaps he will refer to this in summing up—to give an undertaking to the House that the Government will not wait the three to five years allowed for under the LASPO Act for a review of the whole of that vital piece of legislation. However, if they persist in pushing forward with these measures—which I hope very much they will not—I hope that they will make a special case of borderline cases and review early the impact of what they are doing, not least in terms of access to justice and the cost of justice.
As the charity Justice, in its report on this matter, rightly pointed out, the cost to the Exchequer of depriving many of these borderline cases of legal support and the resulting wastage could far exceed the £1 million or so of savings that we are talking about here due to the length of cases, because there are so many more litigants in person, and so on. I hope that my noble friend may be able to say to the House tonight that there will be a special review of these borderline cases in the light of the criticisms made here and in the Joint Committee report and the criticisms made by many others.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I greatly welcome the noble Lord, Lord Faulks, to his new Front Bench role. I have long been among his many admirers on the Bench and have benefited over many years from his invariably helpful and thoughtful submissions. I have not always been able to accept them, and it is just possible that I will not feel able to accept them tonight in regard to these amendment regulations.
The regulations remove legal aid from borderline cases. Borderline cases are those where there are no further identifiable investigations able to be carried out, yet where it is still not clear that the prospects of success are better than 50:50, but nor is it clear that they are worse than 50:50. The reason that neither is clear is because there is a basic dispute as to the law, which has yet to be clarified or developed in this particular way, or as to the facts or expert evidence.
It is absolutely critical to recognise and bear in mind in the course of this short debate that under the existing funding scheme—the scheme it is now proposed to abolish—borderline cases are funded only if they are either of significant wider public importance or of overwhelming importance to the applicant. In other words, the cases to which it is now intended to deny future funding will be either those with implications for the relationship between the state and a substantial number of individuals, or those that impact on such fundamental interests as an individual’s life, liberty, health, housing or something of that character. Surely, these cases are ones that must therefore justify a broader merits test than the bald test simply of establishing that there is at least a 50:50 chance of success.
I suggest that they justify funding so that the critical, disputed question—whether that be of the law, fact or expert evidence—can be clarified. However, instead of that, under these amendment regulations, those cases are to be condemned, deemed to be cases where the prospects of success are “poor”, or less than 50:50.
When I spoke last July on the Motion moved by the noble Baroness, Lady Deech, to take note of the effect of a whole raft of proposed government cuts in legal aid funding—which included those we are now discussing—I urged the Government to take particular note, among the innumerable responses to consultation, almost all of which were opposed for a variety of reasons, of the consultation response prepared by ALBA, the Constitutional and Administrative Law Bar Association, of which I was once privileged to be president. ALBA’s arguments were and remain cogent and convincing, not least as to the borderline cases. Among the material that ALBA presents is a 2012 study by Doughty Street Chambers—chambers that are prominent and highly respected in the field of public law and from which the just retired Director of Public Prosecutions came—showing that in the three years until then, borderline cases had achieved a substantive benefit for the funded party in between 47% and 56% of those cases, which was an average of just over 50%. I repeat, those cases are by definition important cases that affect either the public at large or the vital interests of an individual. Therefore, they are not cases from which the Government should be withdrawing funding. The suggested savings are uncertain; the price of achieving them is altogether too high.
Lord Hope of Craighead (CB)
My Lords, I join everybody else in welcoming the noble Lord to his position on the Front Bench—a very public-spirited move on his part, I am sure, but immensely encouraging to others who deeply regret the fact that the Lord Chancellor can be chosen in a way that removes his presence from this House and in a way that does not require him to have had legal experience. We have suffered somewhat from the lack of the sort of experience that the noble Lord can fortunately bring. It is a significant step forward and to be immensely welcomed.
I also thank the noble Lord, Lord Bach, for his Motion of Regret, which gives us an opportunity to express our regrets at this measure. I spoke, as did the noble and learned Lord, Lord Brown, in July. One of the things I said was that I hoped we would not have a succession of Motions of Regret because I hoped that these things would come up in the form of public Bills that we could then debate in depth. Unfortunately, that has not happened so I am afraid that we will have a series of Motions of Regret, one after the other.
I shall try not to repeat what others have said but the first point on which I want to comment is the borderline test itself, particularly the use to which it has been put. I have a feeling that it has a sort of arithmetical sense to it. When one talks about a borderline case, people at conferences will ask: is it above or below 50%? That is fair enough; that is what the test really means. If it is 50%, it is on the borderline. However, the problem, as has been explained by so many others, is that these things do not measure themselves arithmetically.
That brings me to a series of questions about how this will work in practice. How will fairness be achieved up and down the country? I understand that decisions are taken by independent funding adjudicators who look at the papers. We are not dealing with a single individual—it is difficult enough for one person—but one can imagine a series of people in different offices applying their minds to this test. Is any guidance to be given on how to approach the question of arriving at the borderline? If there is to be guidance, will it be made public so that we can comment on it and make suggestions, particularly if the system is to be reviewed in the future? There is then the very important point made by the noble and learned Lord, Lord Woolf: will there be any element of discretion or shading in a situation where it is difficult to say that it is exactly at 50%? Can one, for example, have a margin of error in favour of granting legal aid, as against not doing so? It is that kind of guidance, if the Minister could explain it, that would help to flesh out how this will work in practice.
The problem with the test, as has been said already, is that it introduces an unequal playing field. The state on the one hand, with all its resources, is in a position to apply a different test on whether or not it wishes to contest the claim, whereas the individual is caught by this very exacting test. There is the vital point about the development of case law. I recall a series of cases, which have already been mentioned, but because I was involved I dare to mention them again. There was the case of Purdy, but it was preceded by that of Pretty, who is unfortunately no longer alive. That was the original assisted suicide case. It was a very difficult case in which to say that she had a 50% chance of success. In fact, she lost. She went to the Strasbourg court and lost there again, but the advantage of her case was that it helped us to begin to develop jurisprudence in this immensely difficult subject, which all Members of this House will have to discuss again before too long. It cleared a lot of the ground, which made it easier to grapple with the Purdy case when it came along.
Then there were the succession of cases, to which the noble Lord, Lord Bach, has referred, in the field of social housing, which were also very difficult to predict. I bear a personal responsibility for this because I sat with Lord Bingham and the noble and learned Lord, Lord Nicholls, and, I think, the noble and learned Lord, Lord Walker, all of whom took one view. Three judges went one way but I turned the case around. Three others followed me and we were a majority of four to three. Who could have predicted that? Everyone knows—this is a commonplace criticism of the Privy Council jurisdiction in the Caribbean—that you need to know who the judges are and the way cases vary. How can one predict when it depends so much on personalities in cases that are so narrowly balanced, as they so often are in the highest courts?
The last point to which I want to draw attention is one of the difficult areas of our law, which has been repeatedly commented on. What do you do as judges, particularly in the senior courts, when you are applying Section 2 of the Human Rights Act, which refers to having regard to decisions of the Strasbourg court? Some of us have been fairly inclined to follow Strasbourg; others have not, in particular the noble and learned Lord, Lord Judge, who asked the other day in a lecture why we should do that. He said we should take an independent view. Again, one will have to guess what the judges are going to do with that jurisdiction, whether there is to be any change and who will be sitting on the panel. One can predict, looking at the Supreme Court today, who will vote one way or the other. That makes this whole idea of the borderline test extremely difficult to accept unless there is to be some really rigorous guidance, which I hope the noble Lord may be able to comment and guide us on. I would respectfully support the Motion that the noble Lord, Lord Bach, has moved.
Lord Beecham (Lab)
My Lords, it gives me great pleasure to join with others of your Lordships in extending very warm congratulations to the Minister on his first experience at the Dispatch Box. Of course, he demonstrated the reasons for his appointment very fully. The noble Lord is an ornament to the legal profession, just as his brother is an ornament to literature. We look forward on this side to many useful jousts over the next few months before—perhaps—there is a change of Government.
The Minister, as the noble Lord, Lord Pannick, said, has undertaken to do this work without remuneration. That is a notable sacrifice on his part. Of course it is consistent with the Government’s policy of acquiring most lawyers to do legal aid work more or less pro bono. I hope that he does not expect too many to follow his example with enthusiasm. However, that is not what we are discussing tonight.
My Lords, these regulations are yet another example of this Government’s apparently incurable propensity to legislate in haste and amend at leisure. It was, appropriately, only on 1 April last year that the Civil Legal Aid (Merits Criteria) Regulations came into force, and after a period of gestation of almost exactly nine months the present amending regulations were laid.
Why was it, we are entitled to ask, that the Government overlooked the apparent necessity to change the arrangements for borderline cases and make them ineligible for legal aid? How did they fail to spot the tidal wave of such cases, amounting—according to the estimate they now give—to all of 100 cases a year? Or the soaring cost to the taxpayer, which equates to as much as just under 0.5% of the legal aid budget?
After all, the noble Lord reminded us that, in the words of his colleague Mr Vara to the Delegated Legislation Committee,
“the motivation for change concerning borderline cases is not simply to save money. The value of our legal aid system cannot just be calculated in pounds and pence. Legal aid is a vital plank of our justice system”.
What a comfort these sentiments must be to the hundreds of thousands of people a year now denied access to legal aid; to the vast majority of practitioners and expert witnesses who are seeing their modest incomes slashed and are turning to other work; to the law centres that have closed, or, like the one in Newcastle which I visited on Friday—the only law centre between Kirklees in the West Riding and the Scottish border—that no longer provide legal aid. The Newcastle centre, which once employed five solicitors and nine staff, is now reduced to one solicitor, one full-time employee and four part-time staff, offering advice only, and only in two areas of law.
Lord Phillips of Sudbury
Did the noble Lord intend to let the Government off the hook when he said at the beginning of his speech that the cost of these cases was one-half of 1%? Lawyers are not good at maths, but I think I am right in saying that it is not 0.5 of a per cent; it is 0.005 of a per cent. It is a tiny sliver of £2 billion. I just wanted to help the noble Lord, Lord Beecham.
Lord Beecham
At this hour of the night, I am quite prepared to accept any correction of the arithmetic. The Government, of course, are never prepared to accept a correction of their arithmetic.
Lord Faulks
My Lords, I thank all noble Lords and noble and learned Lords for their very generous welcome to me. It is a daunting position to find yourself in. I know that, despite the generosity of the welcome, there will be no lack of rigour in the examination to which I am put as a representative of the Government and I look forward to receiving the many useful contributions characterised by those today, which, I am likely to be advised, will be forthcoming in the next weeks and months.
This debate has ranged far and wide, perhaps rather further than the strict terms of the two Motions envisaged. For example, there have been general laments about the Government’s approach to legal aid from the noble Lord, Lord Bach. There has been reference by the noble and learned Lord, Lord Hope, to the difficult interpretation of Section 2 of the Human Rights Act and by the noble and learned Lord, Lord Woolf, to the need for high-quality judicial assistance. All these are important points, but I hope that the House will forgive me if I do not deal with all those points but try to concentrate more specifically on the issues that concern these regulations.
One of the main themes of the debate was the fear that the lack of legal aid for these borderline cases will result in some form of ossification of the common law—that it will not develop in the absence of legal aid for such borderline cases. It is worth remembering that the common law develops in a number of different ways, sometimes with cases which one would not expect to result in a change in the law. The Government believe that prospect of success—the test that is applied—remains a useful and sound test and that a 50% prospect of success is a reasonable one and should not result in cases not being brought and the law not developing.
Individual cases were mentioned, including Pinnock, Smith v Ministry of Defence, Purdy, Pretty and Anufrijeva, to name but a few, all of which were important cases. Of course, the Government are not in a position to comment on individual cases, or precisely on the funding arrangements that may have existed in those cases. There may be other cases which have not resulted in success or in the development of the law. The Government remain doubtful that the change which these regulations will bring about will prevent cases being brought in areas where the law will develop and has developed. One of the ways in which the law has developed is through the Human Rights Act, and it shows little sign of standing still in that regard.
The noble Lord, Lord Bach, asked particularly about the impact on housing cases. I recognise the serious consequences that can ensue from housing cases—the potential for someone to lose their home. Indeed, there are all sorts of cases where there may be serious consequences. But there always has to be an assessment of the merits of a case—that has been well established in the granting of legal aid—and it has been a fundamental part of the scheme since its inception.
The noble Lord also questioned the accuracy of the savings which are put forward. The Government’s best estimate is £1 million. An impact assessment estimated that 100 fewer cases would be funded. As was made clear in the methodology, those were rounded figures. Further supporting data consisting of a breakdown by category of law have been included in the updated impact assessment published alongside the consultation response. While the estimate is based on 2011-12 data, I can assure the House that it is consistent with more recent data; that is, the data from 2012 and 2013. The noble Lord also made reference to the criticism of the regulation by the Secondary Legislation Scrutiny Committee.
The cases which may be included are those where there is a dispute over law or expert evidence. I mentioned that there may still be legal aid where it is as yet impossible to assess the prospect of success, but the Government have been frank that they consider it reasonable in principle that 50% should be the touchstone. We suggest to the House that it is a very reasonable and rather modest prospect of success when one bears in mind the sort of decisions that somebody paying privately might make in deciding whether to pursue litigation. Indeed, many would say that 50% was rather a modest prospect of success and very few privately paying citizens are much enthused or encouraged by the fact that their case raises an interesting point of law. They may well find that that is a less enticing prospect than the fact that they risk losing the case.
Several noble Lords made reference to the fact that there might be some form of inequality of arms because many of the cases were brought against government, either local government or government in one department or another. The Government’s position regarding litigation is that they take into account a broad range of factors when deciding whether to defend or appeal legal challenges, including the prospects of success and the potential costs versus benefits of that action. However, it would be simplistic to say that the Government simply took advantage, as it were, of their overall position in deciding their approach to litigation. It is already a principle of the current scheme that most cases, even those concerning issues of high importance, must have a reasonable prospect of success in order to warrant public funding, and there has to be an assessment of merits and a decision must be made.