Homes (Fitness for Human Habitation) Bill

Lord Carlile of Berriew Excerpts

2nd reading (Hansard): House of Lords
Friday 23rd November 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I too congratulate my noble friend Lord Best on bringing this Bill to the House and Karen Buck on all the work that she has done in another place. I referred in the previous debate to some of the singular peculiarities of your Lordships’ House. Perhaps I should have said the peculiar advantages, for we have had two Second Readings each presented by a true expert in the field that each Bill covers. I know that my noble friend has given a great part of his life to quality and safety of housing, and the issues covered in the Bill. He is highly regarded, particularly throughout the architecture profession and by housebuilders.

I declare an interest: I happen to be chairman of the not-for-profit company Design for Homes, which organises the housing design awards each year. One of the purposes of those awards is to reward not only the beautiful, but large-scale housing that provides safe spaces in good-quality environmental conditions for families, particularly in mixed communities, where people seem to flourish best.

I can say from my experience as a lawyer and sitting as a part-time judge as a recorder in county courts, and, indeed, in the criminal courts, that I have seen the dangers presented by bad housing. One can truly observe that crime, child abuse, respiratory disease and mental illness are all caused—I mean caused—by poor-quality housing and poor housing maintenance. Anybody who is in a caring profession, such as the right reverend Prelate, if he will forgive me for describing his calling as a caring profession, sees that on an everyday basis. I have been involved in some safeguarding inquiries relating to abused children. The effect of poor housing has been all too obvious.

May I be allowed one anecdote? My noble friend Lord Best referred to local authorities. He is absolutely right. Local authorities are sometimes just as much to blame as private landlords. On one occasion I was sitting as a recorder in a central London county court. A woman who had a disabled son of some 20 years had been living without any heating or hot water for two years in her council flat, which was owned by a south London council that I will not name. In the end, a solicitor came to court pro bono to try to get something done. The local authority’s housing director’s answer was that he or she was unavailable that day because they had meetings and could the case be adjourned. My reaction was, “Yes of course, I’ll adjourn the case until 2 o’clock and if he or she doesn’t turn up then there will be a warrant for their arrest”. Of course they turned up, but why should that mother and that disabled young man have had to have gone through months of difficulty and come to an intimidating county court, with wigs, gowns and the rest of it, to get their hot water and heating repaired—the ordinary requirements of life, particularly for that disabled young man? It just should not happen.

I echo something the right reverend Prelate said in this context. It is disgraceful that people who face low-quality housing conditions below fitness for human habitation cannot obtain legal aid to ensure that they get their rights. If they are given legal aid and the landlord has not provided the necessary facilities, the landlord has to pay the costs. I would have thought that this is an area in which legal aid should be glaringly and obviously available.

If I could stray on to the grass verge on the margin of this Bill, I will say something relating to my chairmanship of Design for Homes. We note that, under Sir Roger Scruton, the Government appointed what is called the Building Better, Building Beautiful Commission. This Bill does exactly what it says on the tin, but one has to read that commission’s title with great caution. It seems that the Government have fallen into the trap of appointing “taste tsars” who seem to believe that the bypass variegated, as Osbert Lancaster called it, of old represents the best quality housing and that modernist architecture has no place. Some of the best housing we have seen in the housing design awards—I have been involved for several years now—has appeared in modern, contemporary-looking buildings, which have certain obvious advantages. They have large windows so that you can see what you are doing without having to turn the lights on; they have modern efficient heating systems which do not necessarily take up wall space; and so on. I invite the Minister and the Government to link with the purpose of the Bill: the need to be broadminded about architecture and not be lectured to by people who think they have a monopoly of good taste, particularly when they expressly and explicitly reject best modern practice.

There are many examples where one would not necessarily expect it of poor housing which is not kept in good repair by landlords. In rural areas, many small cottages are let by large estates which spend as little as possible on maintaining those properties. There are more cottages without inside lavatories in the rural areas of England and Wales, at least, than in the urban areas of England and Wales. That requires attention.

Many in this House have had children at universities and we have all seen, in some quite distinguished university cities, terrible accommodation in which landlords simply do not carry out the repairs. They are able to let the properties six months before the tenants move in because there is such demand for them, and if you deliver your student children to those properties you find despicable states of repair. On one occasion recently I had to go out to a supermarket to buy 24 lightbulbs so that one could see anything happening in the students’ accommodation. That was in one of our great university cities. This area needs attention.

As to young working singletons, there have been grants of planning permission, particularly in the London boroughs, in which office premises have been turned into small and inadequate flats and flatlets. One can almost predict what they will be like in five or 10 years’ time because they are plainly unsuited to that kind of conversion. I can understand the reasons why local planning authorities give consent in those cases—it brings properties quickly into residential use—but you are asking for trouble if you do that unless you impose, as a local authority, proper conditions so that those buildings are big enough, clean enough and properly serviced for the future, otherwise you are perpetuating the Rachmanism to which the noble Lord, Lord Horam, referred.

With those thoughts in mind, I strongly support the Bill. It is high time that it was enacted and I hope we will see strong government support for it.

--- Later in debate ---

[Lord Kennedy of Southwark]

We will come back to this on the Tenant Fees Bill. I thought compensation was for when you suffer some loss or injury and if you had money taken off you inappropriately for a prohibited payment. Why cannot there be compensation for that? We will come back to this on the Tenant Fees Bill, but I think it is for any sort of loss, potentially. The noble Lord, Lord Carlile, may want to intervene.

[Lord Carlile of Berriew]

If it helps the Minister, I did not immediately realise he was talking about exemplary damages because they are given in very restricted circumstances. It is pretty unlikely that they ever will be given in an ordinary landlord and tenant case.

[Lord Bourne of Aberystwyth]

I totally agree. We will perhaps come back to this but we are not debating it in this Bill.

Pittsburgh: Synagogue Attack

Lord Carlile of Berriew Excerpts

Monday 29th October 2018 Lords Chamber

[Baroness Tonge (Non-Afl)]

My Lords—

[Lord Carlile of Berriew (CB)]

My Lords—

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

We will hear from the Cross Benches.

[Lord Carlile of Berriew]

My Lords, given the clear evidence that the perpetrator of the Pittsburgh outrage posted anti-Semitic comments on the internet from time to time, is it not time that the Government took the internet service providers to one side and told them that it is their responsibility to remove this kind of outrageous material, or the Government will have to do it for them, with the support of both Houses of Parliament?

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord is right. The message will not have been lost on the providers of social media. It is something we are making them aware of—we are seeking action. Some are more willing to assist than others, but it is clear that they have an overriding responsibility, and what has happened in Pittsburgh underlines that.

Wales Bill

Lord Carlile of Berriew Excerpts

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, before we begin our Report stage scrutiny of the Bill, I would like to say a few words on the wider context and timing of the Bill’s remaining stages. This House has undertaken very effective scrutiny of the Bill. On our part, the Government have listened to points that have been made and concerns raised, and have brought forward amendments where we believe this will improve the Bill’s provisions and put in place a more robust and lasting new devolution settlement. The amendments that the Government are bringing forward for debate today, and for consideration by this House on the second day of Report in the new year, are testament to this.

There is a need for the Assembly to consider an LCM on the Bill before our Third Reading, which we will certainly do. Should the Bill then be subsequently different from the one agreed to by the Assembly, a new LCM would be needed. A different Bill post 17 January would need a new LCM. I feel duty-bound to mention this difficulty and this pressure, although the attitude of noble Lords is of course entirely a matter for your Lordships’ House.

On the amendments in this first group, Clause 1 gives important statutory recognition to the existence of a body of law created by the Assembly and Welsh Ministers which forms part of the law of England and Wales. In Committee, I committed to reflect further on the spirit of an amendment tabled by the noble Lord, Lord Elis-Thomas, that sought to clarify that the body of Welsh law made by the Assembly and the Welsh Ministers forms part of the law that applies in Wales. Having done so, I am pleased to bring forward government Amendment 1, which clarifies that the body of Welsh law made by the Assembly and Welsh Ministers forms part of a wider body of law that applies in Wales. In considering the wording of this government amendment, I am extremely grateful to the noble Lord, Lord Elis-Thomas, for his wise counsel, drawing on his expertise and experience as a former Presiding Officer of the National Assembly.

On Amendment 2, a non-government amendment, noble Lords will recall that we debated a similar amendment from the noble Lord, Lord Wigley, on the first day in Committee, and this issue was also considered in some detail in the other place. It is clear that is there a strong appetite to keep under review the operation of the justice system in Wales as a result of continuing divergence in the laws that apply in England and in Wales, and to ensure that the distinctiveness of Wales is properly reflected under the settlement provided by this Bill.

The Government have been clear throughout the passage of the Bill that we consider the most effective and efficient way to administer justice in England and Wales is through a single jurisdiction. The distinctiveness of Wales can be, and indeed already is, reflected within the single jurisdiction, for example through the National Offender Management Service in Wales and Her Majesty’s Courts & Tribunals Service in Wales. This enables, for example, the National Offender Management Service in Wales to work closely and directly with the Welsh Government and with health and education providers to ensure appropriate provision of services for offenders. It allows the courts to be administered directly in Wales by staff in Wales, while ensuring that a consistent approach is taken on justice policy.

There is undoubtedly a distinctive legal identity in Wales. It has two legislatures and a small but growing body of law made by the Assembly and Welsh Ministers which lawyers and judges will have to specialise in and apply appropriately in relation to devolved matters. Even with increased divergence, the vast majority of laws will, however, continue to apply across England and Wales. A separate jurisdiction would therefore create significant upheaval and huge cost for no good reason.

In Committee, I agreed to take away the points made about establishing a commission to review the functioning of the justice system in relation to Wales, recognising the points made by the noble Baroness, Lady Morgan, that it is an evolving picture and the points made by the noble Baroness and the noble Lord, Lord Elis-Thomas, about the sources of Welsh law. But for the reasons that I have just outlined, such a review should be within the framework provided under the Bill; that is to say that it should review the functioning of the justice system in Wales within the single legal jurisdiction. I was also clear that a statutory commission would not be the appropriate solution. This would be unnecessarily costly and complex, and would be constrained in how it approached its task.

The principle of reviewing the functioning and operation of the justice system in Wales is sensible. That is why we established the Justice in Wales Working Group to consider the administrative and practical implications for the justice system of diverging law. The group will report to Ministers and the Lord Chief Justice within the next week. I wrote to noble Lords yesterday with an early overview of its recommendations, and consideration is being given as to how best to inform Parliament and stakeholders of its findings.

The group has met a range of people involved in the justice system in Wales, including the judiciary, academics, legal practitioners, professional bodies and those directly responsible for the delivery of justice, including NOMS in Wales, HMCTS Wales, Youth Justice Board Cymru and the Crown Prosecution Service. Those discussions have yielded an invaluable source of information on the current processes as well as providing sensible, pragmatic solutions for managing the justice system as the law continues to diverge in Wales. But the work will not finish there. There will be a continuing need to ensure that justice operational arms and devolved authorities work closely together to deliver effective justice in Wales, building on existing examples of good practice and co-operation.

I understand that one of the group’s main recommendations is likely to be the establishment of a committee to undertake periodic reviews of the operation of the justice system as the law continues to diverge. My right honourable friend the Secretary of State has written to the First Minister proposing that such a non-statutory group be established to keep the operation of the justice system in Wales under review on a permanent basis as the administrative arrangements continue to evolve to reflect Wales’s distinctiveness within the single jurisdiction.

The committee will have a focused remit, and will be chaired by a senior official from the Cabinet Office. It will include a representative from the Ministry of Justice and from the Welsh Government. The committee would report periodically to the Lord Chancellor, with both the First Minister and the Secretary of State for Wales receiving copies. Further consideration will be given to the membership and terms of reference of the committee, and to issues such as how regularly it will report and when it should be established. I understand that my right honourable friend the Secretary of State and the First Minister are meeting tomorrow to discuss this issue, among others. However, the committee will not consider issues relating to the jurisdiction or the devolution boundary that this Bill puts in place. I trust that noble Lords will agree that this committee provides a solid basis through which to ensure that the justice system in Wales keeps pace with the dual influence of Assembly and parliamentary lawmaking within the single jurisdiction.

I turn now to Amendment 3. Clause 2 places the existing convention on legislative consent on a statutory footing—

[Lord Carlile of Berriew (LD)]

I am most grateful to the noble Lord and I hear what he says about jurisdiction. If that is to be the case, can he confirm that although the committee will not deal with jurisdiction, it may make recommendations about the administration of parts of the joint jurisdiction so that, for example, a Wales division of the High Court, for instance, might be established which is separate in devolution terms from the Queen’s Bench Division of the High Court, so that the High Court could be fully administered within Wales?

[Lord Bourne of Aberystwyth]

My Lords, I am sure that the noble Lord will understand that I do not want to be drawn into the specifics but, having said that, I understand that that would be within scope. As I say, my right honourable friend the Secretary of State and the First Minister are meeting tomorrow to discuss the terms of reference more fully, but as I say I understand that that would be in scope.

Again, I turn to Amendment 3, dealing with the convention on legislative consent which we are seeking to place on a statutory footing as the Government committed to do in the St David’s Day agreement. This is also in line with Section 2 of the Scotland Act 2016. The convention states that Parliament will not normally legislate on matters devolved to the National Assembly for Wales without the consent of the Assembly. Through Amendment 3, the noble Lord, Lord Wigley, is seeking to broaden the convention by removing the word “normally” from it, and I understand that he will come to address the points on this later.

The use of the word “normally” reflects the convention as it is set out in devolution guidance and its removal from the clause would fundamentally change the nature of what is understood by the convention. That is not what was recommended by the Silk commission or what was set out in the St David’s Day agreement and it is therefore not what we are doing in this Bill.

It is a fundamental principle of our constitution that Parliament is sovereign. As such, it can legislate for matters devolved to the National Assembly for Wales as it can for those devolved to the Scottish Parliament. The convention does not seek to fetter this ability. What it does is make clear that Parliament would not normally do so without the consent of the relevant devolved legislature. The inclusion of “not normally” is essential as it acknowledges parliamentary sovereignty. It also signals that it is not intended to be justiciable, because the courts would recognise that it is for Parliament to determine what is and is not normal in this context.

There may be occasions when it makes sense to legislate on a UK-wide basis. Since the convention was established, a legislative consent Motion has always been sought before Parliament passes legislation applying to Wales which, in the Government’s view, relates to the conferred matters within the Assembly’s legislative competence. I can confirm that this is part of the normal working arrangements between the UK and Welsh Governments that work well, and I expect that to continue.

I turn now to government Amendment 9. Clause 5 inserts new Section 13A into the Government of Wales Act which gives the Secretary of State the power to make regulations to combine the polls at certain Assembly elections with certain UK parliamentary elections and European parliamentary elections. The exercise of this power is subject to the agreement of Welsh Ministers. We consider that it is appropriate for the Secretary of State to be required to consult the Electoral Commission on any regulations made under Section 13A of the Government of Wales Act. This is consistent with the requirement to consult under Section 13 of that Act. Government Amendment 9 achieves this by adding Section 13A of the Government of Wales Act to Section 7(2)(f) of the Political Parties, Elections and Referendums Act 2000.

Government Amendments 10 and 105 relate to the current limit placed on the number of Welsh Ministers. Section 51 of the Government of Wales Act provides that no more than 12 persons are to hold relevant Welsh ministerial office at any time. A relevant Welsh ministerial office is defined in this section as the office of Welsh Minister appointed under Section 48 of the Government of Wales Act or the office of Deputy Welsh Minister. Noble Lords will be aware that the Bill provides significant powers to the Assembly to be able to increase its size if it so wishes. In this context, it is only right that the Assembly should also have the power to increase the size of the Executive. Amendment 105 devolves power to the Assembly to be able to modify or repeal this limit.

Amendment 10 provides that any Assembly legislation which sought to modify this limit would be subject to a supermajority; that is, it would need to be supported by at least two-thirds of Assembly Members. Given the current size of the Assembly in relation to the Welsh Government, we believe that this provides a sensible safeguard to ensure that any modification or repeal of the limit would have broad support among Assembly Members. We have worked closely with the Welsh Government and the Assembly Commission in preparing these amendments.

Wales Bill

Lord Carlile of Berriew Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I support the amendment in the name of the noble Lord, Lord Wigley, with all the Celtic fervour that I can muster. The principle is undoubtedly a proper one, but the technicality is narrow. Some arguments turn upon the existence of Welsh law—its distinctive character—and they are not without their merit. However, that to my mind is not the issue, which is the juxtaposition of a parliamentary jurisdiction and a court jurisdiction. I would go so far as to say that there is something wrong with the constitutional geometry of the situation where more than one parliament operates within the sphere of one legal jurisdiction. That is the essence of it.

Even if there was no difference whatever between Welsh and English law in this matter—and we know there is—it would still be the case, parliaments having the inimitable bent to go their own way, that to have two or more parliaments operating within a single jurisdiction was wrong. I think I heard the noble Lord, Lord Wigley, say that he doubted whether there was any situation in the whole world where that is so, but I ask the Minister—not perhaps in his ministerial capacity but in his capacity as a very distinguished professor of law—whether in any democratic system in the world there is an instance of two parliaments operating within a single legal jurisdiction.

Having said that, I appreciate that there are difficulties, and I have profound respect for what has been said by the noble and learned Lords, Lord Hope and Lord Judge. A great deal has already been started and been done. The Administrative Court has been referred to and it is undoubtedly a success. In addition—I think that the noble and learned Lord, Lord Judge, had a great deal to do with this—the civil and criminal divisions of the Court of Appeal were given every encouragement to meet in Wales, and they did so on many occasions.

There are many trends of that kind; nevertheless, the basic problem still has to be met. We have already heard of the situation in Scotland and Northern Ireland. The Isle of Man, Guernsey and Jersey have their own parliaments and their own jurisdictions. As a matter of legal purity, there should never be a situation where more than one parliament operates within one jurisdiction. Having said that, I appreciate that there are practical difficulties.

[Lord Carlile of Berriew (LD)]

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

[Lord Thomas of Gresford]

Your Lordships will appreciate that I was born in Acton on the Jeffreys estate.

[Lord Carlile of Berriew]

I am delighted to hear that. My noble friend’s sense of justice certainly does not in any way imitate that of Lord Jeffreys of the Bloody Assizes.

However, what I am suggesting is that the presidency of a Wales division of the High Court would have real attractions within Wales.

I would also like—I know that the noble and learned Lord, Lord Judge, would associate himself with this—to praise the actions of the current Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, who was born in south Wales and has frequently reminded us of that fact. Indeed, the noble and learned Lord, Lord Thomas, has evolved what was introduced by the noble and learned Lord, Lord Judge, and given further credibility to the respect that is given to Wales as a jurisdiction where relevant and appropriate.

One group who have hardly been mentioned in this debate is the poor old litigants who go to law in Wales. I had the great privilege of representing Montgomeryshire as its Member of Parliament for 14 years. It sits on a long stretch of the Welsh border. It is quite common for a customer to walk into an estate agent in, say, Llanfyllin, and negotiate the purchase of a property in another branch of that estate agency in Shrewsbury. It is very common—I may have done it myself—to go and look at a new car in Welshpool, but negotiate the price of that new car with somebody in Shrewsbury or some other English town. It is important for Wales that we develop as strong a financial services industry and venture capital industry in Wales as possible, but we need those English and foreign investors who want to take part in such transactions to have the confidence that they work in a predictable legal environment.

This is my final example, although I could give dozens. We need to be sure that those who face a trading standards dispute that arises with a company that operates both in Wales and in England are not faced by someone like myself scratching their expensive head in chambers and saying, “Oh, we’ve got a private international law issue here; a conflicts of law issue on which I will have to write you an extremely learned opinion”—at whatever my hourly rate for the time being happens to be. I do not think that we should inflict those disputes and problems on litigants. Inevitably, that is what would happen after time.

There are many common law jurisdictions around the world and they of course pay enormous respect to the decisions of what was formerly the House of Lords and is now the Supreme Court, and pay lower levels of respect to senior courts as you go down the hierarchy of courts. But inevitably there would be judgments in a separate Welsh jurisdiction that would be inconsistent with judgments in the English jurisdiction or any other common law jurisdiction such as the Scottish jurisdiction—which, as the noble and learned Lord, Lord Hope, knows, has a different origin—or for that matter the jurisdiction in Northern Ireland.

While I would not wish to leave things necessarily as they are and I welcome the proposal made by my noble friend of a detailed and one-off review, creating a completely separate set of law for Wales would be to turn the clock backwards rather than forwards and would have damaging effects on potential litigants in Wales and on the economy of Wales

[Lord Deben (Con)]

My Lords, we are present at one of the most unusual occasions that I can remember. This is an occasion on which lawyers almost universally want to have a less complicated system in which they are less able to find reasons for charging people more money for doing more work. As the House knows, I have a particular penchant for intervening in debates that are largely among lawyers because it is important that they should not be allowed to have unique control over the way in which the law is worked. It therefore pains me to say that I am entirely on the side of the well-argued case put by the noble Lord, Lord Thomas of Gresford. He has explained exactly why there was no need to go down this route.

However, there is one thing that I hope my noble friend will help me with. I do not understand why the Government have set up a working party at this point which it appears will not report in a way that can help this House and which appears to be dilatory in the invitations it has issued. My concern reflects a point raised by my noble friend Lord Crickhowell: this House deserves better. I would like to know what the working party concludes. It would be easier for us to make proper decisions were the working party to give us its information before we make them. The reason I have risen to speak is not only because of my long-standing interest in Welsh affairs but because this House is very often treated rather poorly by the system. If we are to do the job of careful examination of Bills properly, we should have the information beforehand and not be told that there is a working party which will report afterwards. By then we will have missed the opportunity of being informed and doing our job properly.

I hope that my noble friend will not take it amiss, but this is a case which I have had to raise constantly in this House because it has become something of a habit not just of this Government but of previous Governments—to suggest that because they are having discussions, it does not count that we cannot have discussions as a result of their discussions. Discussions between civil servants, however noble, are not the same as discussions between parliamentarians, so we ought to have the information before we finalise our views.

Wales Bill

Lord Carlile of Berriew Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, there has been an unusual noise of breaking bottles outside your Lordships’ House this evening. It rather reflects what I personally would like to do with the Welsh Assembly electoral system. In my view, it has two quite incompatible electoral systems to it. The constituency Members are elected in the normal way to which we are accustomed. The top-up list of 20 is not really elected by the public at all. The truth of the matter is that the candidates who come top of the list of those of the political parties involved are selected by the members of those political parties. Those political parties can have their own selection process, which might well have absolutely nothing to do with residence in Wales or the interests of Wales. We have a fine example in one person who has been mentioned, who actually represents the riff-raff and detritus of our political system. It is very unfortunate for the Welsh Assembly that we have such a person within it.

I listened with great respect to the noble Lord, Lord Crickhowell, as I always do. I understand absolutely the point he is seeking to make. In my old constituency of Montgomeryshire there is a main trunk road that goes through the village of Llanymynech. One side of that road is in Wales and the other side is in England, and indeed there is a public house that is well known to the local residents which has a bar in England and the rest of the pub in Wales, which was of great importance at the time of Sunday closing of pubs in Wales. However, that said, there is no God-given right to be a candidate in an election in Wales. My noble friend Lord Thomas of Gresford just mentioned the two Liberal Democrats who were affected by their membership of public bodies in a way that was reasonably clear if you had gone to a lawyer to analyse the point before the election took place but was not totally clear otherwise.

Northern Ireland: Recent Events

Lord Carlile of Berriew Excerpts

Tuesday 11th December 2012 Lords Chamber

[Baroness Randerson]

The noble Lord makes some important points and draws our attention to what are sometimes stunning symbolic examples and positive gestures by political leaders in the island of Ireland as a whole. When I was in Belfast last week, I was very impressed by the determination of the First Minister and Deputy First Minister to develop the economy of Northern Ireland. I also had a meeting with Invest NI, which is doing excellent work on inward investment. It is key that that investment trickles down to those socially deprived areas where problems such as we have seen in the past week particularly occur.

[Lord Carlile of Berriew]

My Lords, I declare an interest arising from two appointments connected with security in Northern Ireland. Will my noble friend join me in respecting the dignified way in which David Ford has conducted a very difficult job—as difficult as any ministerial appointment on this side of the water—as Minister of Justice in Northern Ireland? Secondly, does she agree that the evidence is that what has happened is a threat to public order but not a threat to national security? The vast majority of the public in Northern Ireland, whichever religion or part of the community they come from, are absolutely hostile to the sort of public disorder that has occurred in recent days and wish strongly that the hooligans who have been committing the acts that have been described would simply go home and stop.

[Baroness Randerson]

My noble friend has introduced two important new topics. One is the excellent way in which the Justice Minister, David Ford, has gone about his work. I met him as well last week and, having met him several times in the past, I was yet again tremendously impressed by his determination and the clear and even-handed way in which he approached his task. On the issue of whether it is a threat to public order or a threat to national security, I would agree with my noble friend that the latter definition has not yet been reached. The important thing is that, however you define it, it is wrong and it must be condemned on all sides.

Justice and Security Bill [HL]

Lord Carlile of Berriew Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.

Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.

[Lord Carlile of Berriew]

My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

[Lord Elystan-Morgan]

My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

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[Baroness Kennedy of The Shaws]

My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

[Lord Carlile of Berriew]

My Lords, perhaps I may take a few moments to make four short points in support of Amendment 62, tabled in the name of my noble friend and the noble Lord, Lord Pannick. Gisting presents great advantages, above all of which, in a headline, is the advantage of fairness. First, it compels the Government’s advocates to focus on the real reasons for pursuing their particular point. Using the very good example cited by the noble Baroness, it enables them to see where they are wrong because an answer can be given if the gisting occurs. Secondly, it shortens the proceedings. If the gist is given, there have been quite a number of cases where the individual has seen that it is not worth opposing the application because he knows perfectly well where he was or what activity he was engaged in at a particular time. Thirdly, it is a fair process, or at least it is as close to a fair process as we are going to be able to achieve when dealing with national security. My fourth reason for supporting Amendment 62 relates to the other words in it which do not deal with gisting of itself. It concerns the ability,

“to enable the excluded party to give effective instructions to his legal representative and special advocate”.

I know that this is going to arise a little later too. To improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for the individual to be able to give instructions to special advocates just as they can give instructions to their own counsel.

I think that this three-line amendment covers a multiplicity of issues and should be supported. I hope that my noble and learned friend on the Front Bench will see the sense of it.

Justice and Security Bill [HL]

Lord Carlile of Berriew Excerpts

Wednesday 11th July 2012 Lords Chamber

I do not anticipate a frequent recourse to CMPs. I expect advocates and judges to be vigilant in ensuring fairness, whether pursuant to Article 6 of the European convention, or otherwise. However, I accept that there may be rare occasions on which recourse to CMPs is necessary. Before such an exceptional process is undertaken, I suggest to the House that the PII procedure, which is well understood, should proceed as a CMP. Courts have shown flexibility in trying to devise methods to protect—

[Lord Carlile of Berriew]

I am very grateful to my noble friend for giving way, and for the great clarity with which he has opened this debate. However, will he deal with this question: why are PII proceedings less secretive than CMP proceedings?

[Lord Faulks]

The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.

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[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

[Lord Carlile of Berriew]

I apologise for intervening again but this seems to be a very important point. I am not sure that the noble Lord, despite all his great distinction, is right in the answer he has just given.

In criminal cases, when a PII application is made, generally the defence knows absolutely nothing about that application and has seen absolutely no documentation underlying it. I have relevant professional experience in criminal cases; I do not have any relevant experience in civil cases so this in a spirit of genuine inquiry. Is the noble Lord saying that in civil cases where a PII application is made, the claimant will have seen the document for which the PII application has been made? If not, we have a problem, do we not?

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[Lord Thomas of Gresford]

I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.

The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.

The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.

It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.

Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.

The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.

This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.

The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.

[Lord Carlile of Berriew]

We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.

[Lord Thomas of Gresford]

That is a matter for clarification by people who know about it and we will look into that later.

--- Later in debate ---

Constitutionally that is not the role of a Minister. Furthermore, my amendments narrow the material which may be subject to closed material procedures to the irreducible minimum. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will regard it as a desirable policy end to have only the irreducible minimum of material subject to closed material procedures; and that the Government are not skewed by influences that may be around, so that the adversarial nature of British law becomes so much in favour of the Government as to make any semblance of a fair trial impossible. I believe that the amendments I am proposing with the assistance of the Bingham Centre for the Rule of Law are simpler, more flexible and yet contain the same safeguards as Amendments 39 and 40.

[Lord Carlile of Berriew]

My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.

[Lord Lester of Herne Hill]

I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.

[Lord Carlile of Berriew]

The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.

Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.

I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.

In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.

What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.

Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.

Although I can see grounds for amending the legislation, I remain unpersuaded that the cha-cha-cha is a more attractive dance than the rumba here. My noble friend wants to do a waltz, I think.

[Lord Lester of Herne Hill]

I would like to do a quick-step. Is my noble friend going to be sympathetic to Amendment 62 in order to improve his dance?

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

[Lord Pannick]

Will the noble Lord assist the Committee with why he thinks that so many special advocates, with all their experience, regard closed procedures as so fundamentally unfair?

[Lord Carlile of Berriew]

They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.

I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.

I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema—a picture house—in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.

[Lord Pannick]

My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.

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[Lord Wallace of Tankerness]

It may cut it down, but it leaves it still without any parameters, subject to “exceptional”, whereas in what is being proposed the kind of factors which the director would be required to take into account are those which I think people would agree are relevant, particularly in determining whether an application is exceptional. The importance of the issue is to the individual concerned: the nature of the rights at stake, the complexity of the case, the capacity of the individual to represent him or herself effectively and whether there are alternative means of securing access to justice. These are not airy fairy considerations; they are ones which I would fully expect the director to be able to bring to bear in dealing with individual cases, and I am sure he would do so. Everyone who makes an application no doubt thinks that their case is in the interests of justice and that it should be funded. At least, there is some indication here as to what criteria the director will apply.

On Amendment 92, I accept what the noble Lord, Lord Bach, said, and we will ensure that the specific questions that he asked about the chief coroner get a response as soon as we can. His amendment would make it a requirement for the director to consult the chief coroner and have regard to his views before making a significant wider public interest determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case.

The Government consider it important to retain the ability to fund inquest representation on the basis of the wider public interest because the provision of such representation may lead to findings which help prevent future deaths. That is why Clause 9(4), which I think in its generality the noble Lord welcomes, gives the director the power to provide funding on the basis of a “wider public interest” determination.

The onus has never been on the decision-maker to consult coroners—I am well aware that I am in the presence of someone who had to make these decisions on many occasions and I recognise the experience of the noble Lord, Lord Bach, in these matters. Indeed, many coroners may not wish to give a view at all. Some are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention.

Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has significant wider public interest.

[Lord Carlile of Berriew]

I apologise for interrupting my noble and learned friend. He may be aware that a boy called Jake Hardy died today as a result of suicide in Hindley Young Offender Institution, a matter that I am sure we would all regret and wish to express our deep sympathy to his family. Can he really see a distinction in inquests between a case in which that young man’s family have an interest and a case in which a wider public have an interest? Is it really the intention of the Government that the family should not be entitled to legal aid if it is not identified that there is a wider interest in the outcome of the inquest? That is a distinction made by this clause.

[Lord Wallace of Tankerness]

My Lords, I have to confess that I have not heard that news, although they are obviously tragic circumstances and I associate myself with expressions of regret. When one does not know the circumstances, I always find it very difficult to extrapolate from them to a wider general principle. I hope that my noble friend will forgive me if I do not follow him down that line, because I simply do not know all the facts and circumstances.

In decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the ECHR, it would seem incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the significant wider public interest aspect of the case. To compel the director to consult the chief coroner in all cases which come for a determination is likely to add considerably to the administrative element of the assessment process and lead to delays for bereaved families. In turn, it would represent a burden on the chief coroner, who would almost certainly be unfamiliar with the circumstances of many cases, unlike the individual coroner who is holding the inquest. The chief coroner would therefore be required to acquaint him or herself with information pertaining to a number of cases with no obvious benefit for bereaved families, who have a locus in this. In these circumstances, there is no obvious benefit in individual coroners or the chief coroner mandating what would inevitably be an additional process in the legal proceedings.

Amendment 92A would compel the director to make provision for the payment of reasonable costs incurred by any person making a successful application under this section. The concept of “reasonable costs” is open to broad interpretation and might be seen to authorise payments at a commercial rather than a legal aid rate. Nevertheless, discussions with the Legal Services Commission about the precise remuneration arrangements for exceptional funding applications are ongoing and we fully expect to propose that the costs associated with the making of successful exceptional funding applications will be payable. I hope that that gives some reassurance to the noble Lord.

The exceptional funding scheme being introduced by the Government will give the director a narrowly drawn power to provide civil legal services that are not available under Schedule 1—hence their being “excluded cases”—where there are exceptional circumstances. We have reviewed questions of the European convention and issues relating to the death of a family member. An individual must qualify for such services in accordance, too, with Clause 10, which means that decisions on exceptional funding will be subject to the means and merits criteria. However, we believe that this is an essential safeguard for fundamental rights of access to justice which will underpin our proposals for changes to the scope of civil legal aid. The Director of Legal Aid Casework will make these exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions in relation to excluded cases. Clause 4(4), which has already been debated, explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases. This will guarantee the objectivity of the decision-making process, in respect of both in-scope and excluded cases, and serve as a safeguard against political interference.

Clause 9(3)(a) provides the director with the power to make an exceptional case determination where the director considers that the failure to provide legal services to an individual would be a breach of the individual’s rights under the convention or European Union law, as we have discussed.

I recognise that concerns have been expressed about the parameters of the exceptional funding scheme that the Bill will create. I am sure—it is obviously the case—that many noble Lords would prefer a broader discretionary power in the Bill but, if I may take the Committee back to the fundamental purposes of the changes that we are making to the general legal aid scheme, we need these reforms to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue; the litigant’s ability to present his or her own case, including the vulnerability of the litigant; the availability of alternative sources of funding; and the availability of other routes towards resolution. We have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases—again, I repeat, essentially where, first and foremost, people’s lives and liberty are at stake; they are at risk of serious physical harm; they risk the immediate loss of their home; or their children may be taken into care. If we make wholesale changes to the exceptional funding provisions in the Bill, we risk undermining the overall reforms to the scope of civil legal aid.

That said, it is nevertheless our expectation that there will be several thousand applications under the new scheme and that there will not be a fixed budget for exceptional funding. It is our intention to publish more details concerning the operation of the proposed exceptional funding scheme and the associated guidance in due course. The guidance will largely be based on the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.

In these circumstances, we believe that this will be a route down which applicants will go and, as my noble friend said when moving his amendment, that it will cover a considerable number of cases. I invite my noble friend to withdraw the amendment and to be reassured by the structure and architecture which is in place with this important clause, in addition to those cases which already will be in scope under Schedule 1.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Macdonald of River Glaven]

One can imagine a category of abuse that is primarily financial. Of course, it could carry in its train some of the other features that the noble and learned Lord has alluded to, but it adds something to the definition of domestic violence. We all know that financial power is an important aspect of the power relationship that can exist between men and women, particularly, as he indicates, women who are being abused in other ways. My view is that the adjective “financial” is an important part of the realistic and modern definition of what can cause and amount to domestic violence.

I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay. We must have a system of legal aid that works properly to protect the victims of domestic abuse, understanding that it is money well spent. We must have a Bill with the modern definition of that crime and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument.

[Lord Carlile of Berriew]

My Lords, I support these amendments. I will particularly refer to Amendment 46. It seems to me that sub-paragraphs (g) (j) and (k) are particularly important. They relate to the less formal types of evidence as opposed to court convictions and the like. These amendments have been eloquently and accurately spoken to by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Macdonald, and I do not want to add too much, apart from a couple of examples. Before I give them, I shall make a point of principle. From my experience as a legal practitioner, it is clear to me that the earlier legal aid is given for the earliest possible intervention, the least harm is likely to be done. I urge the Government to accept that as a very sound principle. I will now give my two illustrations that lead me to that principle.

On one occasion many years ago, when I still practised family law, I was asked to obtain an injunction for a lady from a small town in rural Wales. I was then practising in Chester, and the town in which she lived was about 50 miles west of Chester. She had been driven by various forms of abuse by her husband, some financial—the deprivation of money for daily expenditure for herself and the children, so she could not even buy the children shoes—some emotional and some physical, eventually to go to that daunting place, the local solicitor’s office on the high street. The great solicitor Mr Jones—and he really was called Mr Jones—decided to apply for an injunction, and I was instructed.

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I turn to Amendments—

[Lord Carlile of Berriew]

Before my noble friend moves on from that point, can he go a little further in answering the issue raised by the noble and learned Baroness, Lady Butler-Sloss, about cross-examination? Yes, of course the judge has power to limit inappropriate cross-examination, but the judge cannot prevent the person concerned putting their case, and putting it fully and properly. That is the issue that the noble and learned Baroness is trying to deal with. It is in that situation that the allegedly abused person faces real anguish, and in which the protection of the judge is but a very small instrument.

[Lord McNally]

I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.

I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.

We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.

Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.

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Moved by

[Lord Carlile of Berriew]

54: Schedule 1, page 125, line 38, leave out “paragraph 15” and insert “paragraphs 1 to 5, 8 and 15”

[Lord Carlile of Berriew]

My Lords, the amendment stands in my name and that of other noble Lords. I should make it clear that I shall speak specifically to Amendment 54 and not to the other amendments in this group, which I shall leave to others. Amendment 54 relates to paragraph 17 of Schedule 1 and deals with judicial review. This is an amendment on which the background work has been done by the Bar Council. I should declare an interest as an elected member of the Bar Council—despite that, I agree with it concerning this amendment.

I welcome the Government’s proposal generally to retain public funding for judicial review claims. Judicial review claims are an important part of the rule of law. They are all subject to an important qualification, which is the requirement to obtain the permission of the court for the claim to be pursued. That is not a light procedure. Your Lordships should know that when an application is made for permission for judicial review it goes through quite rigorous stages. The first stage is for the papers to be placed before a High Court judge or a deputy High Court judge—I do from time to time carry out the latter function in judicial review—where they are considered in full. In the great majority of cases, probably in about 95 per cent or possibly more, permission to apply for judicial review is refused at the papers stage. So the permission stage is quite a formidable hurdle. If permission for judicial review is refused, the matter can go for an oral hearing and there are stages thereafter. So this is quite a difficult procedure for potential claimants. It is not easy to be able to bring a case for judicial review.

However, paragraph 17 as drafted causes a difficulty which I and others are anxious to resolve and which may have arisen through inadvertence in drafting. Some of the most important judicial review cases brought in recent years have concerned the way in which public bodies have acted in relation to events giving rise to, or in the aftermath of, death or serious injury. Many of those cases have enjoyed or suffered a large amount of publicity and, indeed, debates in this House and another place. Other significant cases have concerned the exercising of powers enabling a body to seize goods or to enter land—again, a considerable intrusion with the rights of citizens on the face of it. The grounds on which the courts may grant remedies in judicial review are a signal of the excellence of our legal system. I see the noble and learned Lord, Lord Woolf, in his place and he has more experience than most, both at the Bar and on the Bench, in seeing judicial review developing the law in a way that I hope he would agree has become the envy of the world. The public body concerned in judicial review cases is either a statutory body that is alleged to have acted beyond or contrary to its powers, or a Minister or other Crown body exercising some statutory function, or occasionally other bodies that are like public bodies.

The Bar Council and I are concerned that the current drafting of Schedule 1 fails to make it clear that the relationship between paragraph 17 and the exclusions in Part 2 of Schedule 1 leave a fair and level playing field. A number of the exclusions in Part 2, including paragraph 8, which refers to “breach of statutory duty”, could on the face of it remove the scope of legal aid from a wide range of claims for judicial review. The following are examples that may be excluded. A challenge to a decision by a public authority to demolish private property, for example as part of a planning procedure, would be excluded, as would a judicial review to enforce the performance of a statutory duty such as housing a homeless child under the Children Act—I can tell the Committee that such applications are very frequent leave claims, at least permission claims in judicial review. A challenge to a hospital that refused to provide emergency life-saving treatment would be excluded—such claims sometimes arise in relation to elderly people or even in relation to people to whom treatment is denied because, for example, of a history of smoking. Also excluded would be a judicial review into a decision not to hold an inquiry into the violent killing of a young offender. Those are all examples of cases of real importance.

I hope that the Minister will say either that the intention is not to exclude any of those categories, as a statement to that effect would be of great utility in the event of ambiguity being perceived by the courts in such matters, or that he will say, preferably, that as there may be some ambiguity, the Government wish to clarify the matter by producing their own amendment for Report so that there is no lack of clarity or ambiguity. The simple way of doing that would be to remove any doubt by disapplying the exclusions in paragraphs 1 to 5 and 8 of Part 2. This is an important matter. I do not propose at this stage to spend more time on it because I hope that we will hear a helpful response from my noble and learned friend. I beg to move.

[Lord Thomas of Gresford]

My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably.

However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not ever going to get a full hearing in any event. Attempts have been made to curb this, and it is a provision now that only certified people can give immigration advice and representation. It is regulated so that only solicitors, barristers, legal executives and those in a scheme run by the Office of the Immigration Services Commissioner are permitted to give immigration advice and representation in the course of a business. A voluntary agency or charity cannot unless it complies with certain requirements of the Immigration Services Commissioner. Despite all that, these claims are still brought. Some 70 to 80 per cent of immigration judicial review applications are not brought with legal aid, because in order to get legal aid at all there is a merits test, which the particular application has to pass before a solicitor is entitled to take the case forward.

The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because:

“These proceedings … represent a crucial way of ensuring that state power is exercised responsibly”.

In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that:

“The current criteria governing the granting of legal aid in individual cases would generally preclude such funding”.

So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way.

Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications—whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal. The immigration-specific exclusions relating to judicial review effectively ensure that those affected cannot have any legal aid at any stage of the immigration process. As I have already said to your Lordships, immigration is a problem, and it is brought forward in unmeritorious cases, generally without legal aid backing it. But now not even in the meritorious cases will legal aid be granted.

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[Lord Wallace of Tankerness]

My Lords, we have come to an important part of Schedule 1, relating generally to immigration, asylum, removal directions and judicial review, although the amendment moved by my noble friend Lord Carlile of Berriew was of much more general application to judicial review, which is an important part of our legal system, as he very clearly and eloquently set out. Amendment 54 seeks to disapply certain exclusions set out in Part 2 of the Bill for judicial review claims. It would appear to be aimed at ensuring that funding for judicial review is available for judicial reviews concerning, for example, breaches of statutory duty.

Our position is that we believe the amendment largely to be unnecessary, because the exclusions at paragraphs 1, 2, 3, 4, 5 and 8 of Part 2 of Schedule 1 are not intended to prevent funding for judicial review. Rather, the exclusions are intended to prevent the funding of, for example, tortious causes of action, typically for damages. While I hope that that would reassure, perhaps I can follow it by making it clear that our intention is to retain legal aid for most judicial review claims, including those relating to personal injury or death and breach of a statutory duty. I assure the Committee, and indeed my noble friend, that because we have obviously had representations on this point, we are actively and seriously considering whether in the light of this amendment and the points which my noble friend has made in moving it, we need to bring forward amendments of our own to clarify the position and to give proper effect to the intention.

[Lord Carlile of Berriew]

I am most grateful to my noble and learned friend. He has been extremely helpful. Can he clarify one point? Sometimes when judicial review claims are brought there is included in the claim a claim for damages, which can be awarded under judicial review. I take it from what he said that if a claim for damages is part of a judicial review, that part of the claim would also have legal aid available to it. It is one legal aid order.

[Lord Wallace of Tankerness]

This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.

My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration judicial reviews. Before I turn to the specific amendments, it might be helpful if I briefly remind the Committee of the Government’s reasoning on this matter. My noble friend raised the question of the lack of consultation—as did the noble Lord, Lord Bach, who I am delighted to engage with again at the Dispatch Box. I think that the last time we did so was in the debate on the fixed-term Parliaments legislation. It has been six months but seems like a year.

My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges’ Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government’s view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.

The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.

The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute—sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions—if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual’s circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.

We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two relatively limited types of judicial review, and even these provisions are subject to the exceptions that I have outlined.

On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.

Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.

It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.

Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the “leave to appeal” in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.

The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases—that is, non-refugee convention cases.

The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.

Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward—sufficiently new that the court or tribunal is considering a different issue—they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.

The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.

I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.

[Lord Thomas of Gresford]

Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.

[Lord Carlile of Berriew]

My Lords, in relation to Amendment 54, I am grateful for the explicit support from the noble Lord, Lord Bach, on the opposition Front Bench. So far as my noble and learned friend’s response is concerned, as he spoke, I reminded myself that when I was a young man and he was a very young man, we shared a flat for a period within the Division Bell area. When you have shared a kitchen with someone, albeit one in which the most used utensil was the corkscrew, you get to know who you can trust. I entirely trust my noble and learned friend and always have done. I am extremely grateful for his assurances; he answered very fully the concerns that I and the Bar Council felt about this issue. I look forward to returning to the matter on Report, with those assurances intact and enhanced. In the circumstances, I beg leave to withdraw the amendment.

Amendment 54 withdrawn.