Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014
Lord Pannick Excerpts(10 years, 6 months ago)
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Lord Pannick
That this House regrets that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 make the duty of the Lord Chancellor to provide legal aid in judicial review cases dependent on the court granting permission to proceed (SI 2014/ 607).
Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee
Lord Pannick (CB)
My Lords, over the past 40 years politicians of all Governments have complained when they lost judicial reviews. However, when they calmed down they recognised that the principles created by the courts in this area of the law are,
“fundamental features of a constitutional democracy”.
I quote from De Smith’s Judicial Review, edited by the noble and learned Lord, Lord Woolf, Professor Jowell, and others. Lord Chancellors of the stature of the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, saw it as part of their responsibility to remind their ministerial colleagues of the importance and the political neutrality of judicial review. They understood that Ministers may be irritated by these cases while in government, but they welcome such controls when they lose power and move into opposition. The Lord Chancellor in this Administration, Chris Grayling, is by contrast a politician with a short-term mission. He wrote in the Telegraph last month that he is determined to prevent,
“judicial reviews, instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat. Legal aid is paid to a claimant’s lawyers only if the claimant satisfies a means test and shows that the claim has legal merit. Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. The Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration.
The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.
These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low—scandalously low—rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation. Nor is it any solace that the Lord Chancellor has discretion to make a payment; that applies only if the judicial review application is not dismissed and some of these applications will be dismissed because the case is now moot. In any event, nobody can proceed on the basis of a hope that the Lord Chancellor, in his discretion, may choose to make a payment. We have all seen recently that the discretionary “exceptional circumstances” category of funding for legal aid applies in theory but rarely, if ever, in practice.
Lord Faulks
I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.
Lord Pannick
My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.
The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.
I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.
Anti-social Behaviour, Crime and Policing Bill
Lord Pannick Excerpts(10 years, 8 months ago)
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Lord Pannick
As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”
Lord Pannick (CB)
My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.
We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.
I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.
I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.
The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.
The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.
Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,
“right in principle that compensation should be payable”.
My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.
Lord Faulks
My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.
I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.
The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.
The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.
We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.
The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.
Lord Pannick
My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:
“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.
As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.
I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.
Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.
Legal Aid
Lord Pannick Excerpts(10 years, 9 months ago)
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Lord Pannick (CB)
My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?
Lord Faulks
The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.
Criminal Legal Aid (General) (Amendment) Regulations 2013
Lord Pannick Excerpts(10 years, 9 months ago)
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Lord Pannick
That this House regrets that the Criminal Legal Aid (General) (Amendment) Regulations 2013 restrict the availability of legal aid, advice and assistance in prison law cases (SI 2013/2790).
Lord Pannick (CB)
My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:
“There is in consequence, a great deal at stake for prisoners at these reviews”.
The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,
“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.
It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.
The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.
What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:
“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.
He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.
This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.
The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.
Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.
As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.
These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.
In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,
“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.
I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.
These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.
I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.
I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.
Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.
Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.
In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.
Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.
Lord Faulks
I cannot I am afraid give an exact date for that, but I shall take back the noble Lord’s concern and I will write to him when I have information. Of course, it is a matter that will be taken very seriously at the Ministry of Justice.
Lord Pannick
My Lords, I am grateful to the Minister for doing his best to defend this sorry set of regulations. The Government are very fortunate indeed to have his services on the Front Bench. I am grateful to all noble Lords who have spoken in this debate and who have explained with clarity and force why the regulations are wrong in principle and damaging in their consequences.
The Minister may have noticed the embarrassing lack of support for these regulations on the Benches behind him, and indeed anywhere in this House tonight. Before the Minister’s speech, your Lordships heard 15 speeches—I have been counting—all of them regretting these regulations and all highly critical of them and of the purported justifications for them. Noble Lords who have spoken tonight have reflected the widespread concern about the regulations that exists outside this House.
The Minister’s main argument, that the internal complaints system and the ombudsman system are an effective substitute for legal assistance and advice, is simply contrary to the advice of the Parole Board, the inspector of prisons and the ombudsman. It is contrary to court judgments over the years. It is contrary to the experience of all those who have spoken tonight, apart from the Minister. Indeed, it is irrational, given the lack of literacy, the youth, the immaturity and the mental health difficulties of so many prisoners, let alone their obvious inability to identify and present the issues that arise in their cases.
I ask the Minister to send a copy of today’s Hansard to the Secretary of State tomorrow morning, to ask the Secretary of State to reflect on the nature and strength of the concerns that have been expressed tonight from the broad experience and expertise that so characterise this place, to draw the Secretary of State’s attention to the absence of any support for these regulations outside his own ministry and to ask the Secretary of State to think again about this important matter. I beg leave to withdraw the Motion in my name.
Anti-social Behaviour, Crime and Policing Bill
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Lord Pannick
Lord Pannick (CB)
My Lords, Amendment 94E addresses a genuinely difficult problem—that is, the proper test that should be applied to determine whether a person should receive compensation for a miscarriage of justice. Since this is Report, I should report that the debates in Committee demonstrated general agreement, which I share, that the Government are entirely correct to include in this Bill a statutory definition of those cases where compensation should be paid for a miscarriage of justice to secure greater certainty in this area of the law.
I should also report that the Committee stage debates established that there are strengths and weaknesses in each of the two options before the House. The approach adopted in Clause 161 is that compensation should be paid only if a new or newly discovered fact shows beyond reasonable doubt that the defendant was innocent of the offence of which he or she was convicted. The alternative option in my amendment is that compensation should be paid only if the new or newly discovered fact shows conclusively that the evidence against the defendant at trial,
“is so undermined that no conviction could possibly be based on it”.
The amendment has the considerable benefit of using the test which was formulated and applied by the noble and learned Lord, Lord Phillips of Worth Matravers—the then President of the Supreme Court, who I am very pleased to see in his place—at paragraph 55 of his judgment for the majority of the Supreme Court in the Adams case. That paragraph, on page 48 of the Supreme Court document, Decided Cases, states that the test, which is now in the amendment,
“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.
I also draw attention to what was said in the same case—the Adams case—by the noble and learned Lord, Lord Hope of Craighead—who I am also very pleased to see in his place—in support of the test of the noble and learned Lord, Lord Phillips. At paragraph 97 of his judgment, the noble and learned Lord, Lord Hope, said that if a new or newly discovered fact shows conclusively that the prosecution evidence was so undermined that no conviction could possibly be based on it, then it is right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. The noble and learned Lord pointed out that a person against whom there is no sufficient admissible evidence to secure a conviction should not be subject to the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is right in principle that compensation should be payable. These arguments, and others, persuaded the Joint Committee on Human Rights that Amendment 94E would be an appropriate amendment to the Bill.
A third noble and learned Lord, who I am also happy to see in his place—the noble and learned Lord, Lord Brown of Eaton-under-Heywood—dissented in the case of Adams with three of his colleagues in the Supreme Court. The noble and learned Lord, Lord Brown, was concerned that—I summarise his concern, no doubt wholly inadequately—the test applied by the noble and learned Lords, Lord Phillips and Lord Hope, would result in some defendants who were not in fact innocent receiving compensation. My concern with that approach —which is essentially the approach adopted in Clause 161—is that it has never been the role of Ministers or courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent. Our law—the common law—applies a test memorably stated by the distinguished American advocate, Edward Bennett Williams.
He was asked whether Alger Hiss, who was imprisoned for espionage in a notorious case in 1950, was guilty. Mr Bennett Williams replied:
“He should have gotten off”.
I am very doubtful indeed of the wisdom of Clause 161 in requiring Ministers to pronounce on the innocence of people whose convictions have been overturned, especially when the court of criminal appeal, when quashing a conviction, makes no such statement.
Lord Faulks
I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.
This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.
The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.
Lord Pannick
My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.
However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.
The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.
I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:
“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—
that, of course, is the test in the amendment—
“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.
Lord Faulks
When someone has had their convictions overturned, the Secretary of State would, as the noble Lord will realise, have the benefit of the Court of Appeal’s reasoned judgment to assist him.
Lord Pannick
As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.
As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.
Lord Faulks
My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.
As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.
Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.
Lord Pannick
My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.
It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,
“the law supposes that your wife acts under your direction”,
he replies:
“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.
I am delighted that this truly idiotic provision of English law is at long last to be abolished.
Lord Beecham
My Lords, I join in the welcome to the Government’s acceptance of the amendment of the noble Lord, Lord Pannick. It is nice to have a touch of harmony in these proceedings. I entirely support the abolition of what is clearly an archaic and now defective provision.
However, an issue perhaps needs to be addressed. We have now abandoned, rightly, the law of marital coercion, but there is a question about the operation of the law of duress. That of course applies only in limited cases where extreme violence or even death are threatened by one person against another; if that other then conforms with instructions given under such a threat, there may be a defence. Those would be very extreme circumstances, but there is some concern about the position of—usually but not necessarily exclusively—women in a situation of, for example, domestic violence and abuse of that kind. They might be prevailed upon to commit or assist in committing an offence by a threat obviously much less severe than is required by the law of duress. I wonder whether the Government might look at that, or invite the Law Commission to do so, to see whether there is a case for providing a safeguard for those who may be virtually compelled to take action without this rather archaic background.
In addition to or perhaps separately from that, perhaps some consideration might be given to those who have responsibility for deciding whether to charge or to proceed with the prosecution—or, following a prosecution, to impose sentencing—in situations where, as I say, without the extreme requirements of the present law of duress it is nevertheless apparent that pressure and threats of violence or worse have been brought to bear upon the weaker party in that situation. They might not be parties living together; one can envisage other circumstances. Perhaps that matter might be looked at. Having said that, we certainly support the amendment and are glad that this anomaly will be dealt with.
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
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Lord Pannick (CB)
My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.
I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,
The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.
For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.
There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.
Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.
Lord Carlile of Berriew (LD)
My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.
The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.
A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.
As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.
Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.
What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.
Anti-social Behaviour, Crime and Policing Bill
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Lord Pannick (CB)
My Lords, I agree with the speeches that have been made this afternoon. Clause 151 should not be included in the Bill unless it is amended in order to restate current law, as the noble Lord, Lord Beecham, suggested. There are three reasons for that. The first is the reason about which the noble Baroness, Lady Kennedy of The Shaws, spoke; namely, a defendant does not have to prove innocence at trial. It would be contrary to basic principles to require the defendant to prove innocence in order to obtain compensation for a wrongful conviction. Even the Scottish verdict of not proven, to which the noble Lord, Lord Beecham, referred, does not, as I understand it, require the defendant to prove anything at all.
The second point is the practical one, which is as important as issues of principle in this context. The point was made at Second Reading by the noble Baroness, Lady O’Loan, and the noble and learned Lord, Lord Hope of Craighead, and made this afternoon by the noble Baroness, Lady Kennedy of the Shaws. It will often be very difficult indeed for an innocent person to prove their innocence: the evidence may simply be unavailable. It is very unfair that they should be unable to secure compensation for the miscarriage of justice.
The third point is that the approach adopted by Clause 151 breaches the European Convention on Human Rights because it contravenes the presumption of innocence in Article 6.2 of that convention. All 17 judges of the Grand Chamber of the European court stated this on 12 July in the case of Allen v United Kingdom, a case about compensation for miscarriages of justice. It was a unanimous judgment, which found that there was no breach of the presumption of innocence, but an important part of the court’s reasoning, at paragraph 133, was that the courts of the United Kingdom,
“did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.
That is the test that was stated by the noble and learned Lord, Lord Steyn, in the case of Mullen in 2005—found in 1 Appeal Cases, page 1—in the Appellate Committee of your Lordships’ House. The noble and learned Lord, Lord Steyn, took the view that Section 133 did contain a proof of innocence test. That approach was not adopted by the Supreme Court later, in the Adams case.
Clause 151 now wishes to introduce the approach of the noble and learned Lord, Lord Steyn. It would be a quite remarkable step for Parliament to enact legislation now which contravenes a clear and recent statement in a unanimous judgment by the Grand Chamber of the European court, a step which should be taken only in the most exceptional circumstances, where some fundamental principle of English law is at stake. That is not the case here: we are not dealing with a clause that seeks to maintain some fundamental principle of English law. Indeed, to the extent that fundamental principles are at stake, they are those explained by previous speakers in this debate and which Clause 151 will frustrate and breach.
I will make one other point. At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I am very pleased to see in his place today, said he was concerned about a case in which the conviction was quashed because of an abuse of process by the prosecution. However, my understanding of the Adams judgment in the Supreme Court is that compensation is not, in any event, payable under the current law in such a case. The Supreme Court describes such cases as category 4 cases:
“Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted”.
The Supreme Court said very clearly that such cases do not, under current law, confer a right to compensation.
At Second Reading, the noble Lord, Lord Taylor of Holbeach, said that Clause 151 is designed to introduce certainty into the law, but Section 133 already has a clear meaning, as the noble Lord, Lord Beecham, explained. The Government intend to change that meaning; I hope they will withdraw this clause before Report.
Lord Pannick
“Marital coercion
The defence of marital coercion for a wife charged with an offence other than treason or murder is hereby abolished.”
Lord Pannick
My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.
Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.
I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.
Lord McNally
My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.
Lord Pannick
I am very much obliged to the Minister. I beg leave to withdraw the amendment.
Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013
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Lord Bach
My Lords, one way of cutting legal aid is to take areas of law out of scope, which is something that this Government have done with a vengeance. As this House knows very well, social welfare law has been potentially destroyed by Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, there is another way to do the same thing, and that is to cut the number of people who can obtain legal aid in those areas of civil law—and there are precious few of them—which are still in scope; for example, mortgage possession and eviction cases, community care cases, mental capacity cases and some domestic violence cases as well. By these regulations that we are debating tonight, which my regret Motion deals with, Her Majesty’s Government have excluded many who could claim legal aid previously. Is that a fair or just thing to do, particularly at a time of hardship and austerity for so many people? That is my point.
Before 1 April, any person in receipt of means-tested welfare benefits—for example, income support or guaranteed state pension credit—would qualify for legal aid on both income and capital. They were described as being passported. A quick decision could be made, which was easy to administer for the Legal Services Commission as was, the providers of that legal advice and the clients themselves.
Now the Government have put into place radical changes. The regulations require a capital test as well as an income means test: if a person has more than £8,000 capital, they are denied legal aid. Interestingly, under welfare benefit law, that sum is £16,000 and if they have anything less than £16,000, they would still qualify. My first question to the Minister is: why the difference? The welfare benefit system also ignores the value of a person’s main dwelling but in these regulations the value of their main dwelling is taken into account. Therefore, my second question is: why is it taken into account under these regulations but not under welfare benefit regulations?
Of course, there is a disregard of £100,000 for any equity and £100,000 for any mortgage. Do the Government deny that many people who own homes with mortgages and some equity will not qualify for legal aid? The state has recognised in the benefits system that these people cannot easily, or at all, access their capital because it is tied up in the property that they have. Why will that not apply in these cases too? My case is that this will affect a large number of people’s access to some sort of justice. Her Majesty’s Government estimate 4,000 people will be affected. The belief of many outside is that that is an unbelievably small figure and that there will be many more in practice. This is simply unfair.
There is also a need for a general discretion to disregard income and/or capital where it was or is equitable in all the circumstances. In the 2000 regulations, there was a general discretion to disregard where it was equitable in all the circumstances. There has been no evidence of abuse of those regulations in that way. Why is it not in these regulations? We all know cases, perhaps involving mental capacity or disability, where justice demands legal help by way of legal aid. But because of the inflexibility of these regulations there is, to coin a phrase, no way out. There is certainly no way out with the exceptional funding scheme, which perhaps now should be called the very rarely exceptional funding scheme because it is not relevant to cases that are still in scope. Section 10 of LASPO is there for areas of law now out of scope. I fear the fact that there is no flexibility, and that the £8,000 capital is such a ridiculously low figure, shows that the purpose of these regulations is not to advance justice but to restrict it—not to help people sort out their legal problems but to make absolutely certain that they cannot.
In 2009, when austerity had already begun, the Labour Government did not reduce eligibility for legal aid in social welfare law; they increased it by 5%. We recognised that at a time of economic difficulties, it is crucial to ensure that people get quality and inexpensive legal advice to sort out their legal problems rather than go without any access, with the consequences that everyone knows; namely, that problems multiply and magnify until often in the end the state has to pick up the pieces arising out of problems with debt, welfare benefit mistakes and loss of employment. That decision by that Government was not a soft-hearted decision: it was based on a realisation that not only is access to justice right in principle; in this instance it saves the state money. It is not rocket science; it is just something that this Government do not get.
I look forward to the contributions of other noble Lords in this debate and to the Minister’s reply. I ask him on this occasion please to address the debate itself. When I was a Minister, like him, I had to undergo from time to time debates where the government policies that I was trying to defend were attacked from start to finish by practically everyone who spoke. It is not a comfortable position but I would argue that there is still a duty on Ministers to answer the debate being heard at that time. I do not think that the Minister did himself justice last Thursday in the debate that the noble Baroness, Lady Deech, began, but I know that he can. Anyone who heard him at Question Time today dealing with the noble Lord, Lord Tebbit, and others will know that he is an experienced and skilful performer in this House. Therefore, I ask him to deal with the issues that are raised in this debate and not just read out his speech.
There are already cases of people not getting legal aid when they should. That is a consequence of so much social welfare law being taken out of scope. There are also cases of people who have legal problems in areas that are still in scope but as a result of the regulations that we are debating tonight they are not able to access justice. That is a bit of a scandal. The Government should think again about these regulations and I hope that the House will agree with me that they are, at the very least, to be regretted. I beg to move.
Lord Pannick
My Lords, I thank the noble Lord, Lord Bach, for moving this Motion. Over the past three years he has played an essential role in identifying with forensic skill and great eloquence the defects in the series of measures that this Government have brought forward to limit legal aid in our society. The noble Lord has repeatedly pointed out, accurately and with some degree of force, that legal aid is a vital cement in our civil society. There is no point whatever in this place conferring rights unless people have the opportunity to vindicate them. It would be a great shame if there were further reductions in the ability of persons other than the wealthy to vindicate their rights by legal process.
The essential defect in these regulations is their treatment of the capital sums owned by persons who are otherwise eligible for legal aid. I cannot understand why the regulations apply different criteria to capital from the criteria that are applicable in welfare law. Regulation 8(2) provides that any person with more than £8,000 in capital will be denied legal aid, even though welfare benefits law provides that persons qualify for means-tested benefits even though they have up to £16,000 of capital.
There is a further discrepancy in that the welfare benefits system ignores the value of a person’s home. These legal aid regulations will disregard only £100,000 of equity in property, under Regulation 39; and £100,000 of any mortgage, under Regulation 37. The inevitable result is that many people who own their own homes will be excluded from legal aid, even though they cannot in practice access the capital.
All this is very unfortunate, given that the Legal Aid, Sentencing and Punishment of Offenders Act has already reduced the scope of legal aid so that it is now skeletal. I am very concerned that even within the much reduced scope of legal aid under that Act, people who have no income and who are therefore eligible for welfare benefits will be unable to obtain legal advice and assistance. As the noble Lord, Lord Bach, said, there is a vital need in the regulations for more flexibility.
The Minister will no doubt tell us, as he usually does, that funds are limited and that economies are needed, but to adopt criteria, as the regulations do, which are more onerous than the criteria applied to welfare benefits is simply irrational and fails to understand the vital function of legal aid itself as a welfare benefit for the needy in our society. My essential question for the Minister is this: why are the criteria for capital in these regulations different from, and more onerous than, the criteria for welfare benefit law?
Baroness Deech
My Lords, I shall speak in support of my noble friend Lord Pannick and the noble Lord, Lord Bach, who is also my friend but not technically my noble friend. I want to put the regulations in perspective and to inquire whether the Government realise the pressure that these calculations will place on other parts of our society. I will mention just two issues.
This Government and their predecessors have pushed very hard to widen house ownership in the past 20 or 30 years. It has been successful. Ownership, of modest homes, has spread to all corners of society. To include their value in the assessment of legal aid places an unfair burden on a modest number of the population who have striven to own their own home. Not only that, but having owned one’s own home one now finds that it has to be sold to pay for one’s care in old age. It may have to be sold to raise money if one has the misfortune to be involved in expensive litigation. Not only that but, heaven forbid, it might even come to a mansion tax. In other words, one is putting much too much pressure on that wide swathe of population that owns a home of relatively modest value. They might have bought it for a five-figure sum years ago, but they will now find their house in that more than £100,000, and then £8,000, asset rank, depriving them of legal aid. The assessment costs will bite into the limited funds that are available for legal aid, because given the way in which the legislation is drafted, assessing whether someone is eligible for legal aid will involve quite a complicated process.
Legal Aid
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Lord McNally
My Lords, when I first answered Questions on legal aid more than three years ago, the first point I made was that legal aid was a system devised to help the poorest and most vulnerable in our society. It follows that if you cut legal aid, those are the sections of society that are likely to be affected. Economic circumstances have forced cuts on my department and we are trying to make the reforms to legal aid as focused and effective as possible, while still protecting the vulnerable in our society.
Lord Pannick
My Lords, I declare an interest as someone regulated by the noble Baroness, Lady Deech. Does the Minister share the widespread concern that the Government’s proposal to introduce competitive tendering for criminal legal aid services will remove choice for the consumer, remove the incentive for the provider to maintain quality and inevitably result in the destruction of hundreds of small to medium-sized solicitors businesses up and down the country?
Lord McNally
My Lords, I am greatly reassured that somebody is regulating the noble Lord, Lord Pannick. Again, in response to this consultation, we have heard various parts of the legal profession harping on about the worst-case scenario, which we simply do not accept. We are in consultation and have put forward proposals about legal aid contracts. However, the legal professions are facing a number of changes, irrespective of what we are proposing on legal aid—a point I have made before from the Dispatch Box—and they will have to adjust to the new circumstances if they are going to survive. We are consulting with the Law Society and Bar Council, and with other bodies and individuals. We are listening and we hope to get a solution that will reflect what the Government can afford to pay on legal aid at the moment but that will also leave us with the protections for our legal aid system that many of us have taken pride in.
European Convention on Human Rights
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Lord McNally
My Lords, I speak at this Dispatch Box for the coalition Government and the coalition Government’s policy on the European Convention on Human Rights is very clear. The noble Lord asked a specific question, “Is it our policy to withdraw?”, and I gave him a specific Answer: “The Answer is no”.
Lord Pannick
My Lords, do the Government recognise the link between this Question and the previous three in that the European Court of Human Rights has played a major role over the past 40 or so years in combating arbitrary discrimination on grounds of sex and race and other invidious grounds?
Lord McNally
My Lords, I find that a very helpful contribution. When the question, “Are you in favour of the European Convention on Human Rights?” is asked, certain people will see the word Europe and their eyes will start spinning round. As the noble Lord has pointed out, however, if you ask people, “Do you want built into law protection against the power of the state?”, in the way that he has just illustrated, they will invariably say, “Yes, please”.