Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

Lord McNally Excerpts

Wednesday 27th March 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft regulations laid before the House on 4 February be approved.

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments.

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

My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.

Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.

The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.

The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.

I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.

I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.

Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.

Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.

The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.

Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.

However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord McNally]

My Lords, I thank the contributors to this debate. I have listened carefully to the points they have made. Perhaps I could turn first to the important issue raised by the noble Lord, Lord Bach, on how Parliament does its business and the consequences of its decisions. I would simply remind your Lordships—and the noble Lord had the honesty to do so—of what I said before the House voted on 3 December:

“My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not”.—[Official Report, 3/12/12; col. 490.]

I do not know how a Minister could be clearer in asking the House to consider that before voting.

Another point is that what my right honourable friend the then Lord Chancellor promised was to use his best endeavours to look for a concession. He came back with a concession which made its way into the final Act passed by Parliament. If the Opposition Front Bench ever returned to this side of the House, they would be as reluctant as we are to have reopened debate on the final settlements in any legislation by the use of fatal Motions. I believe that that would prolong the issue and put pressure on every Opposition to say, “The matter is not closed. You could pass a fatal Motion and that will get us a better offer”. I do not think that is the way that government can operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and keeping up pressures which, quite frankly, Oppositions would eventually find difficult to handle. The pressure groups, which quite legitimately keep the pressure on us, would say, “Well, it is not closed now because you could pass a fatal Motion”. That is the point.

It is always flattering to suggest that, secretly, I do not agree with the decision, but I actually do and in part because of my capacity as a business manager in this House. I believe that we gave the House a clear understanding of the consequences. The House took its decision, and that is how the Act is now set.

Turning to the running programme of criticisms from the noble Lord, Lord Bach, again I make no complaint about them. I have said previously that it has been a very strong parliamentary performance, which is absolutely right for someone in the Opposition involved in these areas. I would say, though, that in 2010 we were faced with the situation in which there were going to be considerable cuts in government expenditure. The Ministry of Justice was faced with a budget settlement that had been cut by 23% and, as I have said, it is a department that spends money only on prisons, probation, court services and legal aid.

[Lord Howarth of Newport]

Will the Minister confirm that the Government have just announced that they are going to spend somewhere between £100 million and £200 million on the modification of the Olympic stadium for the benefit of West Ham United Football Club? Why are the Government so open-handed in their funding of access to sport but so cruelly restrictive in their funding of access to justice? What scale of values does that represent? Should equality before the law not be a non-negotiable and irreducible value?

[Lord McNally]

That is the point that I was going to make. The noble Lord is extremely good at self-righteous debating points; I almost admire him for that. The fact is, though, that he has been in departments and he knows that they accept budget targets and have to look through their own expenditure.

[Lord Howarth of Newport]

My criticism was of the Government, and the Minister speaks on behalf of the Government.

[Lord McNally]

The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.

We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.

I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.

I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.

One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.

In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.

On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.

[Lord Phillips of Sudbury]

Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?

[Lord McNally]

I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.

[Baroness Whitaker]

Before the noble Lord sits down, I am not sure that he quite dealt with the point made by the noble Lord, Lord Phillips, about a culture change. Does he not agree that these regulations mark a complete reversal of our prior ideas about access to justice and equality before the law?

[Lord McNally]

No, that is why I want to invite a discussion. The term “access to justice” is bandied around very freely. I do not want to provoke him but I see the menacing figure of the noble Lord, Lord Richard, just behind the noble Baroness. He would probably agree that access to justice and access to taxpayer-funded legal aid have never been the same thing and we must not get them confused. Every Government have had to limit this provision. Oh, my God, I see that the noble Lord wishes to speak. As I say, they are not the same thing, but I want this Government and successive Governments to keep the concept of access to justice very much to the forefront of their commitments to the citizen. However, that may be done by adapting the system in a whole manner of ways: for example, in the way that advice is given. The noble Lord, Lord Beecham, was rather dismissive of remote advice, but I think that the use of new technologies will give better access to justice. However, having provoked the noble Lord, Lord Richard, I will give way to him.

[Lord Richard]

I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.

[Lord McNally]

Access to justice may also be by other forms of advice. Not all advice is legal advice.

[Lord Richard]

When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.

[Lord McNally]

Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.

[Lord Phillips of Sudbury]

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—

[Lord McNally]

Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.

[Lord Bach]

No.

[Lord McNally]

Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.

[Lord Bach]

I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.

For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.

The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—

[Lord McNally]

I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.

[Lord Bach]

No.

[Lord McNally]

Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.

[Lord Bach]

I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.

If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.