Legal Aid

Lord Howarth of Newport Excerpts

Thursday 4th December 2014 Lords Chamber

Asked by

[Lord Howarth of Newport]

To ask Her Majesty’s Government whether, in the light of criticism from the judiciary, they plan to reconsider their policies for legal aid.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we have a good working relationship with the judiciary, and I am a strong advocate of the independence of judicial decision-making. When concerns are raised by the judiciary, the Government reflect upon them. The government policy on legal aid continues to be that limited legal aid resources are made available for the most serious cases and to the most financially vulnerable.

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister acknowledge that in a judgment on 31 October the President of the Family Division made some excoriating observations, of general application, on the unjust effects of the denial of legal aid in a case where parents stand to lose custody of their child for ever? He stated that to “require” them,

“to face the local authority’s application without proper representation … would be unconscionable … it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice”.

In the words of the judge,

“the State has simply washed its hands of the problem”.

What steps is the Lord Chancellor taking to ensure that Her Majesty’s Government are not in breach of their legal obligations under the European Convention on Human Rights and the Human Rights Act to ensure that no parent facing proceedings for the removal of a child is prevented by a lack of resources from getting paid legal representation?

[Lord Faulks]

It used to be a convention that judges did not criticise politicians and politicians did not criticise judges. I do not propose to depart from that convention. What I can say is that both those litigants have in fact been able to get legal aid. There remain the exceptional funding provisions under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which apply to cases in which there is said to be a violation of the convention or an EU provision. In fact there is a difference, and one should not conflate this, between scope and eligibility. Usually there is scope for these things, but the individual applicants nevertheless have to satisfy the tests of eligibility.