Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Mayhew of Twysden and Lord Wallace of Tankerness

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority. The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 it would not be available but, as I said, paragraph 20, which covers a significant breach of human rights, might nevertheless allow for funding in those circumstances, or cases might be taken forward by way of judicial review, which might be available for funding.

There is a range of provision in Schedule 1 for cases to be taken forward against public authorities, not solely on the particular part of the schedule to which the amendment of the noble Lord, Lord Ramsbotham, is directed.

[Lord Mayhew of Twysden]

We quite understand the point that the noble and learned Lord is making: that the intention of Ministers is to restrict legal aid to serious cases and that that is the measure. Would he reflect on the position of someone whose liberty has been wrongfully denied and whether it would be any consolation to know that that resulted not from a deliberate act but from some oversight—a mistake, to use the words already employed, of an egregious kind? It does not seem to me that it makes much difference, if you are unlawfully detained, whether it was just by mistake.

[Lord Wallace of Tankerness]

I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources—I think that there is recognition that resources are limited—where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence. The noble and learned Lord, Lord Neill, asked what it covers. The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.