Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Wednesday 18th January 2012 Lords Chamber

As I said to the noble Lord, Lord McNally, we are here to help, and we believe that these amendments would improve the structure of the Bill.

[Lord Bach]

My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments.

I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well.

We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers—and here I have no doubt that it was experienced and leading counsel—told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test.

It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be,

“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state.

Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law is a huge advantage to our law and very much respected around the world, but surely the answer for those who have suffered in that way is not to punish them for the bad decision-making that has been made by the state. There have of course been problems with judicial reviews being used as a weapon by some people—letter before action, in particular. However, as has been stated, the tests are very rigorous and do not permit vexatious or tendentious proceedings. They effectively act to safeguard the public purse, and we have heard no arguments at all to suggest that there has somehow been a failure of the system in the areas that are being taken out of scope of judicial review. It is really incumbent on the Government to show that there has been a failure of the system before taking these cases out of scope.

The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system:

“We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures”.—[Official Report, Commons, 31/10/11; col. 650.]

In his response in writing, however, he said:

“We do not keep these specific figures”.

I raise that not to make some petty point but only to invite the Minister—who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly—to please go back and double-check whether there are any of those figures.

[Lord Phillips of Sudbury]

I cannot resist asking the noble Lord whether he would also class as a failure of the system the fact that more and more legal aid practitioners in immigration and asylum have withdrawn from the scheme altogether, because they tend to be concentrated in city centres and the current rates of remuneration for this work are such that they are simply not sustainable? As I say, I could not resist adding that to his catalogue.

[Lord Bach]

I cannot blame the noble Lord for asking an-ex Legal Aid Minister that question. In immigration law over the last 20 years or so—this has been hinted at already in contributions, and no one really can gainsay it—it was spotted that there were those who practised immigration law who did not do their profession any credit. Perhaps I might put it as cautiously as that; it is probably a good deal worse, frankly. The previous Government, with general support, therefore took steps, as the noble Lord, Lord Thomas of Gresford, reminded us, to make sure that the industry, as it were, became regulated. Thank goodness for that, but the rewards to be gained from doing legal aid work properly in this field are not very great. I have to concede that.

Will the Minister please double-check in the Ministry of Justice, which I know is not his department, whether any figures can be employed for the Government’s case for taking these parts of judicial review out of scope? As the noble Lord, Lord Thomas of Gresford, pointed out with some force, there was no consultation on this point, nor was there any comment in the Government's response to consultation—presumably because it was never referred to in the first place. We believe that judicial review is an important safeguard. Obviously the Government believe that too. That is why we support these amendments, because we want to know why the Government intend to take this part of judicial review out of scope.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources—I think that there is recognition that resources are limited—where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence. The noble and learned Lord, Lord Neill, asked what it covers. The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.

[Lord Bach]

Why should it be only the most serious abuses that allow the victim to get legal aid? There are all kinds of abuses. We know that there are some petty abuses and perhaps I would agree with the Minister that not every petty abuse should allow the victim to get legal aid. There are very serious abuses, which the noble and learned Lord says his Bill intends to cover, but what about medium-sized abuses? I am talking about abuses that are pretty severe for the victim. Should the state be stopped from dealing with those? Why should the victim not be able to get legal aid in order to get a remedy in such a case? Why are the Government saying that the abuse has to be really serious?

[Lord Wallace of Tankerness]

My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—