Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Campbell of Alloway Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.

The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.

The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual’s rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.

In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.

We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.

In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.

[Lord Campbell of Alloway]

Perhaps I may ask my noble friend a question, as I am rather confused. To implement this question as put surely you need to have an elastic available resource—you need something that from time to time meets the circumstances. Is that not right? If you look at Clauses 2 and 4, you will see that they are all involved. It is all a question of legal aid and legal resources. I am not trying to be difficult but I just do not quite understand how it will be paid for.

[Lord McNally]

As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.