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

Debate between Lord Faulks and Lord Maclennan of Rogart

Wednesday 7th May 2014 Lords Chamber

[Lord Faulks]

I will endeavour to answer my noble friend’s question when I come to deal with the discretion.

We do not expect that these regulations will result in providers leaving the market—one point that was made—or that there will be an insufficient number of providers remaining. We do of course expect some providers to take on fewer judicial review cases. Indeed, it is the purpose of the policy to provide a disincentive to providers taking on unmeritorious cases and thus to ensure that limited public funding is targeted at the cases that justify it. While I wholly agree with my noble friend Lord Cormack about the importance of the rule of law and the appropriate endorsement of Lord Bingham’s book, he seemed anxious to encourage any sort of case on the basis that some case might emerge from the morass of unmeritorious cases. We are keen to reduce the size of the trolley of the noble Lord, Lord Carlile, so that those who are contemplating bringing judicial review proceedings think long and hard before going on to make these applications.

The Government firmly reject the accusation that these regulations will undermine access to justice. There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious. A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused. There has been little about interim relief, but I have made it clear to the House that these will not be caught by the restriction on legal aid that these regulations involve.

I now respond to the argument that further guidance should be issued on the Legal Aid Agency’s discretion. During the consultation process, the proposal was criticised for prescribing too rigid a list of criteria that the agency would consider. The Government responded by modifying the criteria and making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.

That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision. No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation. This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances. The consultation response sets out in further detail how the LAA will apply the factors that we have set out and we do not consider that additional guidance could add anything further to this.

As noble Lords will be aware, the House of Lords Secondary Legislation Scrutiny Committee issued a report criticising the regulations, which has been much referenced. We have responded to the report and a copy of the letter has been placed in the House Library. I hope that noble Lords have had an opportunity to see it. The Government will also respond to the report of the Joint Committee on Human Rights in due course. Many of the questions posed in that report were repeated by the noble Lord, Lord Beecham. We will respond in detail to that report and most of the questions that he posed will be answered. We will, of course, keep the operation of these regulations under review as part of the planned post-implementation review of the totality of changes brought in by the LASPO Act, due to take place in the next two to four years.

I acknowledge that the Government have made a number of significant changes to the civil legal aid system since we came to power. The underlying rationale for all these, including the regulations that we are debating tonight, has been to bear down on the cost of legal aid. That is necessary in the current financial climate, which was acknowledged, despite severe misgivings about these regulations, by the noble and learned Baroness, Lady Butler-Sloss. We need to ensure public confidence in the legal system by targeting limited legal aid resources at the people and cases where funding is most needed. These are the aims that I believe the public firmly support.

There has been a great deal of criticism of my right honourable friend the Lord Chancellor and his role. I do not think it is appropriate for me to go into the detail of the attacks that have been made on him. I am sure that noble Lords are sufficiently generously spirited to perhaps construe his referring to left-wing causes as a bit of hyperbole on his part. It matters not, of course, whether the applicant is left wing, right wing or has no political view at all. The question is whether the case is meritorious and whether it should be supported by what are sparse legal aid funds. It is important that the limited availability of legal aid should be targeted appropriately. What this regulation does is not to abolish judicial review, but to limit—in very specific circumstances—the recoverability of legal aid, once the information is available, and subject to the discretion which I have attempted to describe. We may have further arguments, I suspect, when the Bill referred to by the noble Lord, Lord Pannick—the Criminal Justice and Courts Bill—comes before your Lordships’ House. That Bill has various other provisions which do, to some extent, restrict the scope of judicial review, but certainly do not abolish it.

I will, of course, take back the comments made by noble Lords from all round the House to my right honourable friend the Secretary of State and Lord Chancellor, and will convey the anxiety expressed about this erosion, as it characterised, of a constitutional principle. I ask noble Lords to look at the reality of what these regulations propose and not to be too exercised by what has been, I think, somewhat exaggerated in terms of their effect in restricting judicial review. I respect the rule of law, as I hope noble Lords will accept. I accept the value of judicial review and I would not wish to be part of any Government who abolished judicial review. It remains an important constitutional provision begun, as my noble friend Lord Lester described, in the 1970s and developed since, but it is not an illegitimate aim to look at where resources can be properly targeted and to make appropriate adjustments to make sure that only cases which are really worth the public’s expenditure are reaching the court.

My noble friend has expressed his regrets, with his characteristic economy of words. I hope his regrets have been somewhat mollified by this response.

[Lord Maclennan of Rogart (LD)]

My Lords, before the Minister sits down, would he give some consideration to the unanimity of the view which has been expressed in this House—which I have audited—that this measure is a constitutional monstrosity? Would he consider, and represent to his departmental colleagues, the possibility that Parliament may come to grips with these issues and take the decision? This is one which, because of its constitutional extent, should be decided not by a Minister but by a Minister in Parliament.

[Lord Faulks]

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.