Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Goldsmith and Lord Shipley

Tuesday 24th January 2012 Lords Chamber

[Lord Shipley]

I am grateful to the noble Lord, Lord Beecham. I do mean £20 million a year from the recurrent cost to provide for those local partnerships. There would have to be a co-ordinating charity, but that should be possible.

In a short debate on citizens advice bureaux on 8 December, I talked around this point and said that there was capacity at a local level to help the Government to solve the problem. Of course, all of this would be in the spirit of localism. The Government have just enacted the Localism Bill. The Localism Act has as its basic principle the principle that far more should be devolved from the centre to local areas.

The first part of the amendment simply gives the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which Schedule 1 does not apply. The second part facilitates a cheaper delivery model based on local partnerships. On a practical level, it is important to note that it would be a waste of resources if legal aid clients could not receive holistic advice. There could also be many cases at the margins of situations covered by Schedule 1, and we should note the Legal Services Commission's response to the Green Paper, which highlighted the problem of boundary issues and warned that,

“the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to”.

I think this suggests that we ought to do some further work between consideration in Committee and Report and that we should not lose the opportunity to engage with finding a solution to this problem. I hope that the Minister will understand that in moving this amendment, we are trying to be helpful. There are suggestions that this approach, or one like it, could work very well. I hope that in his reply the Minister will say that he is willing to engage in further discussions prior to Report.

[Lord Goldsmith]

My Lords, in an earlier debate in today’s Committee I indicated my involvement in helping agencies that provide social welfare advice and legal help to consumers, employees and others. I am therefore very sympathetic to what lies behind this amendment, which is a recognition that the Bill as it stands will remove an important lifeline for individuals by removing legal aid from the agencies. As I said in that earlier debate, many people outside Parliament may not appreciate that legal aid is not just about giving fees to chaps in wigs; it is also about supporting agencies that provide a lot of excellent advice on a very good value basis. They are able to do that because some of the work they do is supported by legal aid. They are very good value for money and produce tremendous results.

My noble friend Lord Bach has already referred to the very interesting research produced by the Legal Action Group on the provision of social welfare law advice in London. That research points out not only what will happen in terms of dramatically reduced services but how that will cost the state more. As I think the report says, it is penny wise and pound foolish to go down this route. That has been debated before. I am very sympathetic to doing something that will provide funds for these agencies. That is not the only thing that needs to be done to the Bill, but it is an important point—and my noble friend Lady Mallalieu and the noble Lord, Lord Shipley, have made it as well. The problem is whether this amendment will do that. That is where I am concerned. I agree with the identification of the problem, but I am very worried that this is not the solution.

It is not the solution for the reasons that both of the previous speakers referred to. The amendment provides discretion to the Lord Chancellor, because that is what it says, but it goes further than that, as I will describe. The amendment would give the Lord Chancellor the ability to make funding available in circumstances that are completely ill defined. In other words, the criteria are entirely for him to determine. I will come back to what I mean by the word “him” in a moment. It reminds me that in the days before the law of equity and common law were separated, the Lord Chancellor had his own jurisdiction in legal cases. He ran the rules of equity. The criticism—I think the most famous criticism came from the jurist John Selden—was that because it was discretionary and the rules were not rigid or written down in the way that the common law was, you never knew what you were going to get. It was said that it was as if the measure of a foot in equity would be as long, as short or as indifferent as the Lord Chancellor’s foot. That is what worries me about this amendment. It leaves it to the person who has the discretion to determine whether to make any funding available, and if so, how much.

At one stage, I was going to describe this as the “Lord Chancellor’s foot amendment”, but it is worse than that because it is not actually the Lord Chancellor’s foot I am worried about. The present Lord Chancellor is—as no doubt all future Lord Chancellors will be—a man of generosity and kindness who understands the problems of the world and is desperate to help his fellow man. The problem is that Lord Chancellors do not get their money themselves; they get it from another person with the word Chancellor in his name. So I am going to describe this as the “Chancellor’s foot amendment”. I would love to see this amendment come back with tougher criteria and more obligations imposed. The noble Lord, Lord Shipley, suggested that more work be done on what is needed. I do not know whether £20 million a year is the right number for this area—I would be surprised if it is—but it is worth doing that work. This report deals only with London, which in my experience is the best served place.

I would like to see more work done on this, but the amendment will not work as it stands. I am really concerned that this will be put forward as a sop to those of us who would like to see specific areas of welfare law brought back into scope, and we will be told, “Don’t worry, because when this amendment goes through, all these cases can be dealt with through a decision to provide funding”. If this amendment said, “and the Lord Chancellor will have X hundred million pounds a year for that purpose and he will exercise that discretion in those cases”, I might be more favourably disposed towards it, but at the moment I am worried that this will simply be a sop. I too look forward to hearing what the Minister has to say about it, but as it stands it identifies the problem but not the solution.