Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Lord Bach Excerpts

Monday 20th January 2014 Lords Chamber

It cannot be justified that taxpayers’ hard-earned money should be spent on cases that a privately paying citizen of reasonable means would not take because the case is not strong enough. It cannot be right for the state to spend taxpayers’ hard-earned money on such cases. That is why we are making this change. I look forward to hearing the views of noble Lords on this important matter, but I trust that the House will agree with the Government. I commend the draft regulations to the House and I beg to move.

[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.