Legal Aid

Lord Irvine of Lairg Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Irvine of Lairg]

My Lords, I, too, congratulate the noble Baroness, Lady Deech, on having secured this timely debate. I will confine myself to the impact of the Lord Chancellor’s legal aid proposals on judicial review.

The Constitutional Reform Act 2005 provides in Part 1 that the Act will not adversely affect,

“the existing constitutional principle of the rule of law, or … the Lord Chancellor's existing constitutional role in relation to that principle”.

The civil legal aid scheme supports the rule of law by making access to justice and the courts real. The Lord Chancellor himself has acknowledged that legal aid is,

“the hallmark of a fair, open justice system”.

I invite your Lordships to contrast that sound statement with the damaging effects, in practice, of his legal aid proposals on judicial review.

One is to refuse legal aid to those who do not meet a residence test—that is, those who have not been lawfully resident in the UK for 12 months—so no immigration detainee will be eligible for legal aid as, by definition, anyone in immigration detention is not lawfully resident in the UK. A second is to remove legal aid from a wide range of prison law cases. A third is to remove funding for cases assessed as having a borderline prospect of success—that is, most cases in public law.

Those changes will set the Government above the law in many areas. First, legal aid will no longer be available for those in immigration detention. The Home Secretary already has the power to deprive those individuals of their liberty by executive fiat, not court order. In 2012, more than 28,000 people were detained under immigration powers in immigration removal centres; many more were detained in prisons. Secondly, legal aid will no longer be available to destitute families with no immigration status who are waiting for a decision from the Home Office; nor, thirdly, to prisoners, who are wholly under the control of the state; nor, fourthly, to cases where foreign nationals have been murdered, tortured, or detained abroad by British soldiers.

I draw your Lordships’ attention to some recent decisions of our highest court in claims that could not in practice have been brought without legal aid but would not be eligible for legal aid under the proposals. First, there is the Lumba case in 2011, the leading case on the Home Secretary’s ability to detain individuals using immigration powers. The Supreme Court held that the Secretary of State was applying an unlawful policy when detaining foreign national prisoners, in that the real policy entailed a presumption in favour of detention without exceptions, whereas the published policy had a presumption in favour of release.

Secondly, there is the decision of the House of Lords in Simms in 2000, which held that Prison Service policy and instructions preventing prisoners from having oral interviews with journalists, even on questions of whether they had been wrongly convicted, were unlawful. That claimant would no longer be eligible for legal aid, as he will be excluded under the prison law reforms. Thirdly, in Al-Skeini in 2007, the claim arose from the deaths of six Iraqi civilians and the brutal maltreatment of one of them, causing his death. Each of the deceased was killed, and the maltreatment was inflicted by members of the British Armed Forces. That claim, which succeeded in the Supreme Court, could not be brought under the proposals, because the claimants would fail the residence test.

In his evidence to the Justice Committee in the other place on 3 July 2013, the Lord Chancellor admitted that the changes are, at least in part, ideological in nature. He asserted that matters relating to conditions in prison should be dealt with through a complaints system and a prisoners’ ombudsman. However, judicial review is a remedy of last resort: only those cases that have arguably not been satisfactorily resolved through the complaints system and the ombudsman ever get to court.

The effect of the reforms is to make judicial review in practice unavailable to many of those most in need of its protection. No doubt, the Lord Chancellor and some of his colleagues in government find judicial review an irritant, but the critical issue is whether the proposals will in practice take a wrecking ball to our constitution and the rule of law. I am sure that many of your Lordships share my deep concerns.