Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Carlile of Berriew Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

[Lord Carlile of Berriew (LD)]

I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.