Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Pannick]

My Lords, I, too, support the amendment so persuasively moved by the noble Lord, Lord Bach. I do so for three reasons. The first reason concerns the vital importance of employment rights. Few areas of the law are of such day-to-day practical importance to the individual as their rights under employment law. This is surely at least as important as environmental pollution rights, which are within scope under paragraph 37. I do not understand why equality is included in paragraph 38 and so is within scope, covering as it does some employment rights, including the important right not to be discriminated against on prohibited grounds, but not other equally important employment rights such as the right not to be unfairly dismissed.

The second reason—the noble Lord, Lord Bach, mentioned this—is the inevitable inequality in advice and representation between the employer, who almost always has legal advice and representation in the employment tribunal, and the employee. This will undoubtedly result in inequity and in decisions being given that are contrary not only to justice but to the law.

The third reason is the absolute inevitability that the lack of legal advice and representation will result in people wrongly losing their jobs and becoming reliant on state benefits. I hope that the Minister will address this point because the very limited financial savings that we are talking about are completely illusory for this reason.

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[Lord Thomas of Gresford]

My Lords, the concept that employment tribunals are a cosy chat between an employee and his boss in front of a very receptive body of people is quite wrong these days. An impression of unfairness is created for the employee who is seeking his rights when he finds perhaps even a QC appearing on behalf of a wealthy employer. I have appeared many times for employers, sometimes for employees and sometimes on my own behalf.

The excuse, or the reasons, given by the Minister would be far more acceptable if he were to say, “Well, if a union is backing an employee, that is fair enough; they can pay for legal representation”. If he is there on his own, why not just have the boss—the person who did the sacking—in front of the tribunal, not lawyers who in many cases are overpaid when they are dealing with the individual appearing in front of them?

[Lord Pannick]

Before the Minister sits down completely, I have a question arising out of his emphasis on legal aid being available for equality claims. If I have understood this part correctly, paragraph 40 makes clear that legal aid will be available if your claim is in connection with a claim that is within scope. Is it right, therefore, that if I am a dismissed employee and I wish to be eligible for legal aid under the new regime, I should add a discrimination claim to my claim for unfair dismissal and then both of them would be within scope for legal aid? If that is correct, the consequence of excluding general employment claims from scope will simply be to encourage unmeritorious discrimination claims to be brought in order to ensure legal aid for unfair dismissal claims.

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[Lord Carlile of Berriew]

My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.

I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema—a picture house—in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.

[Lord Pannick]

My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.

[Baroness Mallalieu]

I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?

Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.

First, I would have to discover the relevant forms—whatever they are—which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities—the reports of the earlier cases that will be relied on—will have to be compiled and given to the court and the other side as well.

How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An “exceptional case” must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,

“compelling reason why the proper conduct of the appeal requires the provision of civil legal”,

aid, brings in just that factor that is currently missing.

If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.

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[Lord Thomas of Gresford]

I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, “What’s he saying?”, and the chairman replied out of the side of his mouth, “I haven’t a clue”, so I said to the applicant, “Would you mind speaking more slowly please?”. He looked at me and said, “Eh?”. He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.

[Lord Pannick]

My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.

[Lord Phillips of Sudbury]

My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.

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[Lord Pannick]

My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the “exceptional case determination” exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.

The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.

[Lord Phillips of Sudbury]

My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.

I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the “interests of justice”, and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general “interests of justice” exception. I hope that the Government will take this opportunity to put our minds at rest.

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[Lord Wallace of Tankerness]

My Lords, it is important that we have moved on to Clause 9, covering exceptional funding, because this has been discussed in earlier amendments. Amendment 91, moved by my noble friend Lord Thomas of Gresford, would allow the director to fund excluded cases where he or she determines that it is generally in the interests of justice to do so. I am sure that Members of the Committee will readily acknowledge and appreciate that in this context, the phrase “interests of justice” is capable of wide interpretation. The amendment would create a power, which I am sure is its intention, that is considerably broader than the one currently being proposed in Clause 9 as it stands. It is right that there should be an exceptional funding scheme and that it should provide a potential safety net for the protection of individuals’ fundamental rights of access to justice, and we believe that Clause 9 achieves that important end. Exceptional funding determinations under Clause 9(3) will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.

Following on from that and looking at the jurisprudence, in considering whether legal aid should be provided in an individual case, the kind of factors that the director will need to take into account include: the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent themselves effectively; and alternative means of securing access to justice. These factors are broadly similar to the considerations that the Legal Services Commission currently takes into account in criminal proceedings where it is in the interests of justice for legal representation to be provided. I would suggest that our exceptional funding provisions are likely to meet the concerns of noble Lords in civil cases where, for example, Article 6 of the European Convention on Human Rights is engaged. Indeed, in moving his amendment, my noble friend Lord Thomas of Gresford accepted that there is substantial case law from Strasbourg in relation to family law and he almost seemed to acknowledge himself that there was a potential for very many cases indeed to qualify under the exceptional funding provisions as set out in the Bill. However, we believe that the insertion of the general phrase “interests of justice” would be open to very broad interpretation and would risk undermining the approach, scope and rationale for making changes to the legal aid system.

It has been acknowledged that Amendment 91A, tabled by the noble Lord, Lord Bach, covers similar territory in that it would allow the director to make exceptional case determinations when it was appropriate to do so against specified criteria. As with Amendment 91, the potential ambit of this is extremely broad, and certain elements would be open to very wide interpretation. Again, however, I believe it is worth noting that many of the factors listed in the amendment, such as,

“the client’s vulnerability … the client’s capacity to represent themself … and … the availability of alternative sources of”,

funding will form at least part of the test for exceptional funding where Article 6 is engaged.

Amendment 91A also specifically refers to clients under the age of 18. In considering whether an individual case meets ECHR exceptional funding criteria, the director would be obliged to consider the ability of the client to present their own case, having regard to the complexity and importance of the issues in terms of what is at stake. Where a child brings an action without a litigation friend, that would be a relevant factor in deciding whether or not they have the ability to present their own case. In the end, the factors I have indicated will be taken into account by the director in deciding whether the absence of legal aid would mean that it was practically impossible for the applicant to present their case or would lead to an obvious unfairness in the proceedings.

The noble Lord, Lord Bach, asked whether legal aid would apply to advice and assistance. The answer is that in principle it could do so to the extent that it would avoid the breach of an individual’s rights under, for example, Article 6. Amendment 92 raises the issue of the chief coroner—

[Lord Pannick]

My Lords, in relation to Amendment 91, does the noble and learned Lord accept that Clause 9(3) as currently drafted will require the director to spend much of his or her time making determinations as to the scope and application of convention rights rather than focusing on the easier question of whether or not the interests of justice require legal aid? I would suggest to the noble and learned Lord that there is a real danger of satellite litigation as to whether or not convention rights or EU rights are in fact breached. Would it not be much more sensible and efficient, and much less expensive, to leave the director to focus on what he or she will be good at, which is asking whether the interests of justice require legal aid?

[Lord Wallace of Tankerness]

As ever the noble Lord puts a seductive argument, but there is a certain advantage in the director being required to have regard to convention rights because, if the test was the wider one of the undefined interests of justice, I am not sure whether that would lead to any less satellite litigation; it is possible that it could lead to more. He says that it would be easier, but when faced with that test without any guidance—with the exception of a certain amount of specificity set out in the amendment tabled by the noble Lord, Lord Bach—there would not be any real steer for the director if that is all he is to be left with when making decisions.

[Lord Pannick]

It would be very difficult to challenge a director’s decision as to whether the interests of justice are met because it is a subjective test. If the test, as under Clause 9(3), is hard-edged—that is, whether there is a breach of the convention—it is much easier to bring a legal claim in that respect.

[Lord Wallace of Tankerness]

Having a definition which in these circumstances would be so broad—which I think the noble Lord is saying is a merit of it—opens up vast scope, as I said in response to my noble friend Lord Thomas.