Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hart of Chilton Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and in the names of the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, and the noble Lord, Lord Hart of Chilton. Its purpose is simple—to implement more effectively the Government’s proposal to include an exceptional cases category for legal aid as set out in Clause 10. The problem which this amendment seeks to address is that Clause 10 is too narrowly drafted and will prevent the very flexibility that it is designed to provide. That is because the exceptional cases category set out in the clause applies only if the refusal of legal aid would amount to a breach of rights under the European Convention on Human Rights or would create a risk of doing so.

The difficulty, as the noble Lord, Lord Thomas of Gresford, stated when moving his amendment at the Report stage, is that it is inevitable that:

“All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved”.—[Official Report, 12/3/12; col. 119.]

The case may concern a difficult and important question of statutory interpretation in the Court of Appeal or in the Supreme Court in a type of case generally excluded from the scope of legal aid. This amendment would confer a power on the director of legal aid to fund litigation if both of two conditions are satisfied. The first condition is that the director considers that funding the litigation is necessary—a strong term—to avoid injustice. I have adopted in the amendment the suggestion made in Committee by the noble and learned Lord, Lord Mackay of Clashfern, that the discretion should be defined not as a power to promote justice, but as a power to avoid specific injustice, a much narrower concept. The noble and learned Lord has asked me to express to the House his apologies for not being able to be here today.

The second condition which would need to be satisfied before the power could be exercised by the director is that the director considers that the case is an appropriate one for use of the funds, if any, made available for this purpose by the Lord Chancellor. That wording is designed to ensure that funding remains entirely within the discretion of the Lord Chancellor. The amendment, I emphasise, does not require additional funds to be found. The amendment leaves it to the Lord Chancellor to decide what funds, if any, to provide for this purpose.

If then the Lord Chancellor is not required to provide funds for this exceptional category of cases, your Lordships will wish to know what is the purpose of the amendment. The answer is that even if the Lord Chancellor were to say that no money is currently available for this exceptional category of cases—I hope that that would not be the case—it is vital to include a discretion in the Bill so that a statutory power exists to fund exceptional cases which can be exercised with the agreement of the Lord Chancellor when the economy improves.

Noble Lords should not approve a Bill confining legal aid in the manner proposed by the Government without including in it a provision which at least allows the Lord Chancellor, in his discretion, to provide some funding for the exceptional cases about which I am concerned. Parliament may not have a chance to address legal aid issues again for some time. I very much hope that even at this late stage the Minister will be able to accept the amendment, which confers power on the Lord Chancellor to allow funding for exceptional cases but imposes no duty on him to do so. I beg to move.

[Lord Hart of Chilton]

I support the amendment, which is also in my name. Interested bodies such as Citizens Advice, Justice for All and the Law Society have all pointed out that the Government’s exceptional funding safety net does not stretch wide enough for the reasons so clearly given by the noble Lord, Lord Pannick. I emphasise that the amendment of itself imposes no extra financial burden on the Lord Chancellor; it simply provides an opportunity for a discretion to be exercised if it is necessary—I emphasise the word “necessary”—to prevent a specific injustice occurring. If it was decided to use this power, the costs would be provided from discretionary funds made available to the director by the Lord Chancellor.

The amendment should be seen as a simple, practical and positive act of assistance to the Government, who, if they accept it, will have the flexibility to act in the circumstances provided for. Legislative opportunities for any Government are few and far between. In my view, this opportunity should be seized and the helpful amendment accepted.

[Lord Woolf]

My Lords, in the courts, many cases have three judges involved in determining what should be the outcome. If one judge gives a judgment on the provision which the other two judges think is totally convincing and where they have nothing useful to add, they just say, “I agree”. I agree with the speeches that have been made in support of the amendment.