Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Mallalieu Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Pannick]

My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.

[Baroness Mallalieu]

I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?

Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.

First, I would have to discover the relevant forms—whatever they are—which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities—the reports of the earlier cases that will be relied on—will have to be compiled and given to the court and the other side as well.

How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An “exceptional case” must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,

“compelling reason why the proper conduct of the appeal requires the provision of civil legal”,

aid, brings in just that factor that is currently missing.

If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.

[Lord Clinton-Davis]

I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.

The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,

“a complex issue of law … wider public interest … some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services”.

I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.