Public Interest Immunity Certificates

Debate between Lord Carlile of Berriew and Lord Wallace of Tankerness

Monday 18th November 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.

Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.

[Lord Carlile of Berriew (LD)]

Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.

[Lord Wallace of Tankerness]

My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Wallace of Tankerness

Tuesday 24th January 2012 Lords Chamber

[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

Debate between Lord Carlile of Berriew and Lord Wallace of Tankerness

Wednesday 18th January 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Wallace of Tankerness

Monday 16th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—

[Lord Carlile of Berriew]

I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?

[Lord Wallace of Tankerness]

We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.