Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015
Lord Bach Excerpts(9 years, 11 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the statutory instrument before the Committee today amends the Civil Legal Aid (Merits Criteria) Regulations 2013, known as the “merits criteria regulations”, so that legal aid funding can be provided in some cases where the prospects of succeeding are below 50% but where legal aid funding is required under the European Convention on Human Rights or EU law. These changes have been made to reflect the findings on the legal aid merits test made by the High Court in the recent case of IS.
While this judgment is under appeal—I have had an indication that an appeal will be heard on 25 or 26 April next year—the Government consider it important that these amendments are brought into force without delay to provide a means by which the Legal Aid Agency is able to comply with the judgment in the interim. Failure to make such a change promptly would have resulted in an extended period in which the Legal Aid Agency might in some cases either have taken an unlawful decision or indeed have been unable to take any decision. For these reasons, and owing to limited parliamentary time, the statutory instrument before us was made and brought into force using the urgency procedure provided for under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The merits criteria regulations set out the merits criteria that must be applied by the Director of Legal Aid Casework at the Legal Aid Agency when determining whether an applicant qualifies for civil legal services under Part 1 of Schedule 1 to LASPO. Broadly speaking, these criteria provide the basis for deciding whether it is justified to provide, or to continue to provide, public funds in an individual case. The factors to be considered are similar to those that would influence a privately paying client of moderate means when considering whether to become involved in proceedings.
Why are the Government taking this action? The merits criteria regulations include a number of different requirements, including a prospects of success test for an application for full representation. When the prospects of success test applies, the regulations generally prevent the Legal Aid Agency funding any case where the prospects of success are below 50%. Had the merits criteria regulations remained unamended, the director would therefore have been placed in something of a bind. Refusing legal aid in some cases would have been an unlawful decision as, on the High Court’s findings, it might have resulted in a convention breach. While the Legal Aid Agency could have sought to delay non-urgent decisions, we did not think it would be reasonable to await the outcome of the Government’s appeal in this matter, which may not be known for some time. Even though the hearings are in April, there may well of course be some delay in producing a judgment.
The amendments made by this instrument mean that, in cases where an application for full representation is subject to an assessment of its prospects of success, legal aid may now be provided for some cases assessed as having “borderline” or “poor” prospects of success. The director will need to be satisfied that it is necessary to determine or, in the case of a risk of a breach, appropriate to determine that the prospects of success test is met in order to prevent a breach, or the risk of a breach, of the legal aid applicant’s rights under the convention or enforceable EU rights.
A discrete point arises. The Joint Committee on Statutory Instruments, or JCSI, has expressed its views on the clarity—or, more accurately, the lack of clarity—in respect of the transitional provisions in the SI. I apologise to the Committee for any confusion that may have been engendered; the department intends to develop a revised drafting approach—resulting, I hope, in greater clarity—to be used in future that is more closely targeted at solely those cases that begin before commencement. However, we consider that the transitional provisions in this instrument still operate to achieve the policy intention.
This instrument makes important and necessary amendments to the merits criteria regulations to ensure that legal aid will continue to be provided in any case where refusal to grant would be unlawful. It does so while maintaining the underlying purpose of the civil legal aid eligibility criteria and the legal aid scheme—that is, to make sure that the limited legal aid budget is directed at the cases which most justify public funding. I therefore commend this statutory instrument to the Committee, and I beg to move.
Lord Bach (Lab)
My Lords, I shall be extremely brief. I thank the Minister for his very clear outlining of these regulations. I can tell him and the Committee at once that the Opposition do not oppose it—indeed, we support it. I thank him for his generous apology regarding the points made by the JCSI. The regulations are clearly a sensible step for Her Majesty’s Government to have taken following the High Court judgment. The Government are appealing that decision, and we are grateful to the Minister for telling us the date. I gather that it was a fixed date for the hearing. The Minister and I know that those dates can change, however fixed they may or may not be. If the appeal is unsuccessful, will it be the Government’s intention to change the criteria by legislation? Our advice, for what it is worth—and if the Government are interested in any way—is not to do so. We welcome the regulations.
Lord Faulks
I am grateful to the noble Lord for his observations and for the advice that he so generously offered on behalf of Her Majesty’s Opposition. Of course, depending on the outcome of the case, one side or another might consider it necessary to pursue the matter further to the Supreme Court, were permission to be obtained, but in due course a decision will follow that judgment and we will decide whether or not to proceed with the matter.
I have been given an amended date, I am afraid to say. I wrongly informed the Committee that it was April, but the better news is that it has been brought forward: the date is now 21 or 22 March 2016, but of course that will be subject to the provisos so accurately identified by the noble Lord, Lord Bach.
Lord Faulks
I am grateful for that interruption. Who knows? But we are at least moving in the right direction, I am glad to say.
I am grateful for the general acknowledgement of the sense of these regulations, and I thank the noble Lord for that. I believe this to be an appropriate instrument that makes the necessary amendments to the merits criteria regulations in order to comply with the judgment pending the appeal.
British Bill of Rights
Lord Bach Excerpts(10 years ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government will fully consult on our proposals before introducing legislation for a Bill of Rights. Further details regarding this consultation will be announced in the autumn.
Lord Bach (Lab)
I thank the Minister for his reply to my Question. The House will know that the Ministerial Code has recently been amended to remove the reference to Ministers having to comply with international law and treaty obligations. This follows the Permanent Secretary at the Foreign and Commonwealth Office saying that human rights are no longer a priority for his department. Will the Minister please give the House a categorical assurance that the amendment to the Ministerial Code will make absolutely no difference to Ministers’ existing duty to comply with international law and treaty obligations? If, as I hope, the answer to my question is yes, why has it been necessary to amend the Ministerial Code at all?
Lord Faulks
My Lords, as the noble Lord will be aware, we have a dualist system rather than a monist system. Neither Parliament nor the courts are bound by international law, but a member of the Executive, including a Minister such as myself, is obliged to follow international law, whether it is reflected in the Ministerial Code or not. All Ministers will be aware of their obligations under the rule of law.
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Lord Bach Excerpts(10 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, in 2014 we funded advice and assistance in over 51,000 new social welfare matters and issued over 11,000 certificates for representation at court. We are monitoring the impacts of legal aid reform and will conduct a post-implementation review within five years of implementation.
Lord Bach (Lab)
My Lords, of course I thank the Minister for his Answer, but is he aware that everyone outside the confines the Ministry of Justice believes that LASPO has been a disaster? He referred to 52,000 cases in 2013-14. Perhaps I could remind him that in 2009-10, the number of advice and assistance cases was 471,000. This means that more than 88% of our fellow citizens, who, I need not remind the House, are the poor, the vulnerable and the disabled, who previously benefited from legal advice, are now effectively deprived of access to justice. Two powerful parliamentary committees, the Justice Committee and the Public Accounts Committee, have made severe criticisms of the Act. Does the Ministry of Justice reject all their findings, and does the Minister not agree that, now we have a new Government, this is the right time to review how the Act is working?
Lord Faulks
My Lords, the LASPO Act has not been a disaster. It was necessary to make some sensible and well-directed changes to legal aid. In social welfare, the most important cases concerning people’s housing and their ability to stay in their house are still within scope, but some of the lesser matters are not. Of course we keep the matter under review, but the noble Lord will know that the legal aid reforms did not take place until April 2013, there having been a spike before then. It is important to see how they are affecting people over the longer term, which is why this Government repeat what the previous coalition Government agreed, which is that we will look at the whole system in much more detail, but only within five years and not before.
FIFA
Lord Bach Excerpts(10 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Crown Prosecution Service does not conduct criminal investigations. The Serious Fraud Office has not opened a criminal investigation into allegations relating to FIFA. While the SFO has not opened such an investigation, it is actively reviewing material in its possession. It also stands ready to assist the US and Swiss authorities in their investigations, although, by international convention, the SFO would not comment on such matters.
Lord Bach (Lab)
My Lords, I thank the Minister for his Answer. Of course, by its nature this scandal is international and has been brewing for many years. We have excellent investigative and prosecuting authorities in this country. Does the Minister agree that this is the appropriate time for a thorough investigation of any possible British connection, whether through the banking system, British nationals or in any other way? Will Her Majesty’s Government ensure that sufficient resources are made available for any such investigation?
Lord Faulks
My Lords, this is a fast-unfolding story. I am sure we can be generous enough to acknowledge the major contribution the United States Department of Justice has made to this matter. In the mean time, we stand ready to assist. It is a fast-developing situation. The SFO has been aware of allegations relating to FIFA for some years. It is keeping the situation under review and is ready to assist in any way it can. We do not think there is a lack of resources. Although the SFO is involved in a number of high-profile and difficult cases, including the LIBOR manipulation, resources are not an issue in this case.
Access to Justice
Lord Bach Excerpts(10 years, 7 months ago)
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Lord Faulks
My noble friend is of course quite right to identify the potential injustice that can result from cuts in legal aid. That is something that any responsible Government will have close to their heart, and we will continue to consider any adverse effects.
Lord Bach (Lab)
My Lords, I do not know whether the Minister has had a chance to see last week’s report by the Justice Committee of the House of Commons, which criticised the LASPO Act in very strong terms indeed, particularly on the issue of exceptional funding. I do not think it is going too far to say that it suggested that, despite the promise that exceptional funding would be a way in which those who could not get legal aid any longer would be able to get legal aid in exceptional cases, there have actually been a tiny number of cases. It criticised the Government for their response as far as that is concerned. Does the Minister agree and what are the Government going to do about the fact that more than 325,000 people per year who used to be able to get legal help when they needed it no longer can because of the Legal Aid, Sentencing and Punishment of Offenders Act?
Lord Faulks
My Lords, the exceptional funding provisions in the LASPO Act were very specifically drawn to deal with potential violations of EU law or of the European Convention on Human Rights. We are satisfied that the Act is performing as Parliament passed it, although it is true that there have been fewer applications than we expected. We have done our best to make it easy for those people who think they come within the terms to make an application and have afforded the possibility of a preliminary view being offered by the Legal Aid Agency. The answer to the noble Lord’s other point is that some people are not getting legal aid who were previously. We have tried to concentrate on those at the bottom of society who need it most.
Criminal Bar: Funding
Lord Bach Excerpts(10 years, 10 months ago)
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Lord Bach (Lab)
My Lords, I congratulate my noble and learned friend Lord Morris of Aberavon on securing the debate. It is an important debate, made much more significant by the experience and status of those who have chosen to speak. These include two former Lord Chief Justices, one of whom, of course, was Master of the Rolls too, one former Supreme Court judge, one former Attorney-General—my noble and learned friend Lord Morris of Aberavon himself—and two distinguished and successful silks, if I may call them that, including the Minister. I practised as a member of the criminal Bar for many years and am proud to have done so. Slightly to my surprise, and certainly much more to other people’s surprise, I find myself now in the position of shadow Attorney-General.
The years I practised in just about covered what I describe as the golden years for the criminal Bar. They were pretty golden, I have to say. There was the emergence of the Crown Court; there was plenty of work; there were not many members of the criminal Bar around; it was pretty well paid; and it was effectively a monopoly for members of the Bar at that stage. I would argue that that state of affairs has now been over for many years; perhaps 20 or a few more than 20. The important point to remember is that those golden years are not coming back. Any politician of any party who says that they are, or hints that they might be, is to be viewed with a healthy degree of scepticism, at the very least—and the criminal Bar was always very good at being sceptical about pronouncements being made. Therefore, any discussion of the criminal Bar has to happen in the context of today rather than looking back too much at a time that has gone.
As my noble and learned friend Lord Morris pointed out, over a long period the rewards for criminal practitioners have without doubt declined sharply. That is due not just to cuts or long rises in fees, although, of course, they play an important part in what has happened. As Sir Bill Jeffrey, who has been quoted already in this debate, concludes in his report of May last year, crime is down, fewer cases reach the Crown Courts and there are more guilty pleas. He says:
“There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials”.
Of course, there are many more solicitor advocates. Sir Bill goes on to say,
“There are now many more criminal advocates than there is work for them to do”.
He goes on to make proposals for the future, all of which are well thought out, very interesting and should be considered carefully. My first question to the Minister is this: What can he tell us today about Her Majesty’s Government’s response to the Jeffrey report, both in general terms and, if possible, in more detail?
Sir Bill talks about the future of the Bar being less clear. He says that there are signs that, away from the self-employed Bar, the tide may be turning, but he fears that the Bar’s lack of confidence in the future of criminal work, or its unwillingness to adjust to compete for it, may become a self-fulfilling prophecy. I think that the following passage was referred to by the noble and learned Lord, Lord Brown. It is worth quoting. It states:
“This matters, because the particular strengths of the English and Welsh criminal Bar are a substantial national asset, which could not easily be replicated. There is also a distinct national interest in having sufficient top-end advocates to undertake the most complex and serious trials, and senior judges with deep criminal experience”.
It is very hard for anyone to argue with that view. When Her Majesty’s Government did their deal, if I may call it that, with the Bar last spring—agreeing a VHCC cut and leaving until after the election a cut in the graduated fee, with an agreement to discuss the future of both those causes to be continued until the summer of 2015—they were following a well trodden path in two respects. First, some issues were put into what might crudely be called the long grass to escape criticism for actually taking action; and secondly—and more importantly—they actually split the legal profession. The solicitor criminal practitioners were offered no equivalent agreement and some would argue that they were left hanging out to dry. Cuts have been implemented in that field and the imposition of a new and controversial system of criminal legal aid is being attempted. Instead of talks to determine the future, therefore, we actually have, as we speak this afternoon, solicitor practitioners and the Law Society itself traditionally reviewing the Ministry of Justice in court. To put it mildly, this is a deeply unsatisfactory position for our criminal justice system. To set one branch of the legal profession against another is wrong both in principle and in practice, and it does not help either branch or, indeed, the criminal justice system itself.
If my party wins the general election, we will set in train a review of the criminal justice system, concerning not just funding but the way the system works for victims, defendants, the general public and, of course, practitioners. Obviously, we are not making any promises about funding but one thing is clear: there is no future for the Criminal Bar, the criminal solicitors’ profession or even the criminal justice system itself if the Government of the day play off one branch against another. There are obviously going to be natural tensions between the various branches and the Government of the day; that will always happen. But no system will work unless all parties, including the Government, work together.
Legal Aid: Social Welfare Law
Lord Bach Excerpts(11 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we have made hard choices in reforming legal aid. However, we have retained it for the highest priority social welfare cases and we continue to spend an estimated £50 million per year on this area. Although the Act is relatively new, the reduction in legal aid for social welfare matters is broadly in line with expectations. We are monitoring the impact of legal aid reform and will conduct a post-implementation review within five years of implementation.
Lord Bach (Lab)
My Lords, I thank the noble Lord for his Answer but he and the Government know that the effect on social welfare law advice has been devastating. In the year 2013-14 alone—this is from the Government’s own figures—there was an 80% fall in the number of social welfare law cases, including a figure of 45% in housing cases. These cuts affect the poorest and most vulnerable, including many disabled people, in our society. Are the Government to some extent ashamed of the removal of access to justice from hundreds of thousands of our fellow citizens, all caused by deliberate coalition government policy?
Lord Faulks
The noble Lord mentioned housing. In fact, legal aid remains available for eviction and possession cases, housing disrepairs, where there is a serious risk to health or safety, homelessness assistance and all debt matters which may represent a threat to somebody’s home. As to the cuts in legal aid, they are concentrated on matters where the Government, after careful consideration, have decided that having a lawyer is not always the answer.
Criminal Justice and Courts Bill
Lord Bach Excerpts(11 years, 4 months ago)
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Lord Bach (Lab)
My Lords, my remarks will be directed to Part 4 of the Bill. However, I cannot resist noting how it was exactly this type of Bill—perhaps best described as a Christmas tree Bill which is also introducing new offences—which was the subject of so much stern criticism from the then Opposition in the previous Parliament. Now, of course, the present Government commend the good sense of putting so many disparate elements—I doubt we have had them all yet—into one Bill and then, conveniently, adding more and more offences to the list. One perhaps should not be surprised by this change of heart, but the contrast in attitude is striking.
As to Part 4 and its attack on judicial review, we should not be surprised at all. It is no use claiming, as the Minister did, that these proposals are technical—he did not use the expression de minimis, a mere tidying-up operation, but that is what he perhaps meant—and should be seen just for themselves. Even if they stood alone, they are much more serious than that.
However, the provisions do not stand alone. They are the latest instalment in a series of provisions that are consciously and deliberately undermining our precious system of civil justice and, thus, every citizen’s right to access justice. I agree with what the right reverend Prelate the Bishop of Oxford said in his remarks.
Let us begin with the Government’s first step, taken days after they came to power, to administratively cut back the number of cases in which civil legal advice was available. The numbers declined in the first three years from 485,000 to 293,000. Then, of course, came legislation in the form of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO. This removed legal aid from the majority of social welfare law advice and, since its implementation exactly 15 months ago tomorrow, the results, frankly, have been devastating—as the Ministry of Justice’s own recently published Legal Aid Statistics in England and Wales 2013-2014 show in painful detail.
It is ironic in the extreme today that, looking back, the underlying message from government Ministers while LASPO was being debated was that Parliament should pass those provisions because there were two safeguards that would protect the poor claimant. One was exceptional cases funding. Noble Lords know now that that is a farce. Of 1,320 non-inquest applications for exceptional funding last year, how many were granted? Sixteen—not one in the field of welfare benefit; not one in the field of housing. Those statistics come from the document to which I referred a moment ago.
The other safeguard, we were regularly told, was judicial review, which was safe in the Government’s hands. Even if there was no legal aid funding any more for benefit, debt or employment advice, there was always judicial review available to all when appropriate and when needed. This House voted down Part 1 many times. It did not like what the Government were doing but eventually it allowed the Government their way. Is it too fanciful to think that one of the reasons it did this was because of the promise of Ministers relating to judicial review?
As the right reverend Prelate the Bishop of Oxford said, eight days after Royal Assent the first judicial review consultation was announced. Of course, LASPO regulations have been debated in your Lordships’ House over the months. The Government were defeated on one but did absolutely nothing about it. Of course, the inevitable attack on judicial review has begun and is now well under way.
The Lord Chancellor’s accusation that judicial reviews are the preserve of left-wing pressure groups, and other such nonsense, has set the background for the scene. Then came the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which by negative resolution, unbelievably, radically altered the long-standing principle by saying that unless permission is given, legal aid practitioners will not be paid—unless of course the legal aid authority agreed, which was not likely to happen.
With this one move, as was strongly argued in this House by Peers from across the Chamber on 7 May last in debating the regret Motion of the noble Lord, Lord Pannick, the Government have just changed the nature of judicial review. It will without doubt mean that some claimants, often poor and sometimes disabled, who have a good claim will not be able to find a lawyer to represent them. As the Joint Committee on Human Rights put it,
“the uncertainty and financial risk for legal aid practitioners would affect both the number of practitioners willing to carry out public law work and the kinds of cases they would be willing to take on in future”.
Our own House of Lords Secondary Legislation Scrutiny Committee was critical, not least of the level of uncertainty.
That brings us to Part 4 of the Bill. The proposals in Part 4 cannot just be viewed in isolation; they are part of a process that began when this Government came to office and will reach its nadir when the appalling residence test regulations are debated shortly in both Houses. Why have the Government done this? It was not in the manifestos, nor was it part of the coalition agreement, that our system of civil justice should be dismantled so that instead of remaining a gem in our legal crown, it is something which we may soon become ashamed of.
Many noble Lords have linked the judicial review proposals in this Bill with the earlier legal aid proposals: my noble friend Lord Beecham did so in his excellent speech, as did the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Campbell of Surbiton, the right reverend Prelate and the noble Lord, Lord Low. They all linked judicial proposals with earlier legal aid proposals, as did the Bingham Centre in a very telling paragraph. It said:
“The relationship between the judicial review and legal aid proposals is important because it goes to the right of access to justice, which is a key element of the rule of law and which is acknowledged both at common law, as a constitutional right, and by the European Convention on Human Rights. It is well-recognised that the right of access to justice is capable of being curtailed or infringed not only directly, but also by placing recourse to litigation beyond individuals’ financial means. It is equally axiomatic that whatever other valuable mechanisms may exist for protecting the rights and interests of individuals, it is independent courts of law, in a democracy founded upon the rule of law, that stand as the ultimate guarantors of basic legal rights”.
As for judicial review itself, it is worth quoting the noble and learned Lord, Lord Neuberger, President of the Supreme Court. In his 2013 Justice annual lecture, he said on that occasion:
“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive—central government, local government, or other public bodies”.
He went on:
“While the Government is entitled to look at the way that”,
judicial review,
“is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.
Frankly, there is no serious commentator who supports the Government’s proposals for judicial review. Judicial review is a part of our law well worth defending and it falls on this House to do so.
Prisons: Overcrowding
Lord Bach Excerpts(11 years, 4 months ago)
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Lord Bach (Lab)
My Lords, I thank the Minister for repeating his right honourable friend’s Answer but, as far as this side is concerned, it does not begin to deal with the questions that have been raised in the past few days. Last week, the highly respected Chief Inspector of Prisons voiced serious concerns over the impact on prisoners and staff of overcrowding in the prison estate. He referred to a rising trend of suicides and self-harm, of tension and violence, and of the inability to offer meaningful work or recreation. It was frankly astonishing to hear the Secretary of State for Justice airily dismiss these concerns on the “Today” programme, sounding like a political Dr Pangloss of whom Voltaire would have indeed been proud. He seemed to think it was only a matter of prisoners doubling up in their cells for a few weeks until the crisis passed, as if that was merely a trifling inconvenience for the prisoners and—as importantly if not more so—for those whose task it is to ensure good order and their safety.
When will the Government acknowledge and act on the facts that violence against prison staff has increased by 45% since 2010; that there has been a 60% rise in the number of times the prison riot squad has been called out; and that the use of Gold Command to deal with serious incidents has doubled in the past two years? It is time for the Secretary of State to stop playing to the gallery, to start listening to the chief inspector and to deal properly with the crisis in the service.
Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014
Lord Bach Excerpts(11 years, 6 months ago)
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Lord Bach (Lab)
My Lords, even more than usual, thanks are owed to the noble Lord, Lord Pannick, for tabling this regret Motion, because these regulations are laid, as we have heard, under Section 2 of LASPO, which requires only a negative statutory instrument. This allows for the implementation of the regulation before Parliament has any opportunity to debate it. Indeed, Parliament would have had no such opportunity if not for the noble Lord himself. All those with an interest in the rule of law and access to justice—and that should be all of us—once again owe a debt of gratitude to the noble Lord.
Other experts argue with some force that the appropriate way for Her Majesty’s Government legitimately to bring forward such a major reform—with the likely consequence that in practice many poor citizens will not be able to exercise every citizen’s right to question executive power—is by primary legislation. If this, however, is asking too much, these experts argue that the regulations should have been laid under Section 9 of LASPO, which obliges the Government to get parliamentary approval before the regulation comes into place. Thankfully we are having a debate, and I make a few points in support of the Motion of the noble Lord, Lord Pannick.
I perhaps ought to declare an interest. I am probably the only speaker to take part in this debate who has been on the wrong side of a judicial review. The court found against the decision I had taken. However, that encourages me even more to make the points I intend to make.
In his initial attack on judicial review, the Lord Chancellor implied in rather a general, throwaway manner that judicial review was somehow becoming the tool of left-wing pressure groups egged on by left-wing lawyers. This sort of talk may of course satisfy the Daily Telegraph on a bad day, or the Daily Mail on any day, but it does not accord with reality. Judicial review is supposed to be open to all citizens who want to challenge the decisions of the executive: it should be for all of us. Examples of citizens, rich and poor alike, taking this course are legion. For me, a current example is close to home, and I mention it briefly. The self-described descendants of King Richard III, who obtained a judicial review of the Lord Chancellor’s decision, cannot, I suggest, be described as left-wing activists whose purpose is to destroy civilisation as we know it.
Criticism can and must be made of the Lord Chancellor himself. He often gives the impression, I am afraid, that he does not always appreciate important principles that lie at the heart of our legal system, or that he does not have much understanding of how it works in practice. Both are important: the principles, and how they work in practice. It is unfair—on balance—to say that it is because he is not a lawyer. There are many non-lawyers who have a deep understanding of how precious and important our legal system is. However, I make the point that all four of the Lord Chancellor’s current crop of junior Ministers are distinguished lawyers. One in particular is distinguished—I will not embarrass him by naming him tonight but I think he knows who he is. I ask this question of that Minister: is it not time that he and his lawyer colleagues, who, just as much as the Lord Chancellor, must have the interests of justice as their prime obligation, girded up their loins, if I may use that expression, and together pointed out to their boss that many of the changes being made in his name seem to have scant concern for the concept of the rule of law, or access to justice, or how these important principles are put into practice in a system that I hope is still—but only just—the envy of the world?
The regulations we are debating are, I argue, a good example. Everyone who has looked at the regulations comes to the irresistible conclusion that for the LAA not to be allowed to pay any legal aid in a case where permission is refused and for the Lord Chancellor to have an unclear and uncertain discretion if a case never reaches the permission stage will have a chilling effect. It will mean that lawyers will not be able to take judicial review cases where the claimant cannot afford to pay. The result is that a system of law which is open to all will inevitably have become closed to many, and in particular to those who most need the protection of judicial review against the power of the Executive.
As the Bar Council put it in paragraph 9 of its very well argued briefing note:
“A fundamental concern is that a particular group only (namely, legally aided claimants) would be subject to these provisions. Public authorities would face no particular adverse consequences when they resisted applications for permission for no good reason. The position of privately funded claimants would remain unchanged. Treating legally aided claimants differently would be unfair. It does not happen in relation to other areas of law. It would create an unprecedented imbalance between the parties to litigation and will lead to inequality of arms”.
That is a powerful statement. When the Minister comes to reply, will he say whether he agrees with it?
Of course, the point has been made that there are already filters in place: a merits test before legal aid can be granted and, in every case, there is a permission stage. As the same note from the Bar Council says in paragraph 11,
“the existence of the filter amply serves its intended purpose. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not ‘rebalance’ judicial review; rather, it risks fatally undermining it”.
If one looks back to the passage of the LASPO Act through Parliament, the Government promised two safeguards. One was that exceptional cases would be a safety net for the area of social welfare law that was being taken out of scope. In its first year of operation, the exceptional cases point has turned out to be a miserable failure. The second safeguard—the noble Lord, Lord Pannick, spoke of this—was of course to be the continuation of legal aid for judicial review. As the Government argued in their own original Proposals for the Reform of Legal Aid in England and Wales in November 2010, judicial review represents,
“a crucial way of ensuring that state power is exercised responsibly”.
Throughout the lengthy debates in this House and in the other place, Ministers would use the existence of legal aid judicial review as a reason why it was safe to remove legal aid from social welfare law. Yet barely one year after Part 1 of that Act has come into force, the Government are introducing a regulation that is bound to have the effect of making it very unlikely that a poor or disabled person, or a citizen who needs legal aid, will be able to get justice by way of judicial review. The risk of not getting permission, and thus not getting any costs, is so great that providers simply cannot or will not be able to do it.
To my mind, this represents a particularly low point for the Government. They have got controversial legislation through Parliament on a false basis and further demeaned our legal system. Where will it end?