Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Debate between Lord Phillips of Sudbury and Lord Woolf

Monday 20th January 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, we have heard powerful arguments advanced, and I shall try to avoid repeating those arguments. I commence by first thanking the noble Lord, Lord Bach, for bringing his Motion of Regret in respect of civil legal aid regulations. I strongly support those arguments. I also echo the support that has been given already to his remarks specifically in welcoming the noble Lord, Lord Faulks, to his new responsibilities. Those members of the judiciary on whose behalf I shall say a few words on this matter, because I think that they are particularly affected, would all welcome the fact that a leading counsel of his distinction is now a member of the government team dealing with justice matters—and they are justice matters that I want to speak about.

Our justice system is of course based on the common law. For many years I was a common law judge, who has a special responsibility that does not apply to the same extent to the civil legal system in clarifying and developing the law from which we all benefit. I differ from the Minister in his approach, which was ably addressed a few minutes ago by the noble Baroness, Lady Lister, in her useful remarks. The law is not there for one section of the community; it is there for us all. We all benefit from the protections that it provides and the setting that it provides for all our activities. The judiciary is concerned that all of the public should have access to justice. That must mean a justice system that is fit for the age in which we live and has developed in accordance with the way in which a common law system can develop, singularly because of the use of precedent, which is such an important part of our system. When the noble Lord, Lord Faulks, opened his case for approving these regulations, I was not clear whether he was saying that there would be any discretion to grant legal aid in the case of an issue which was obviously important for the courts to decide, but which would need the assistance of able counsel in order to decide the case. Sometimes that can be self-evident. The cases we are primarily talking about are dealing with points of law. In the case of points of law, it is particularly important that the courts should have the assistance of appropriate counsel to deal with the type of case before them.

In our system we now have a limited number of judicial assistants to help us in our work of doing justice, but they are very much a limited assistance. Our system does not compare with systems such as that in the United States, or even the system in Canada, because there they hear the appellate judges, who will normally have the responsibility of dealing with the developments in the law to which I have referred and are given much more assistance by very experienced young lawyers than is available in our courts.

Our courts depend on the judges themselves doing the research with the assistance of counsel. If they do not have before them counsel of the necessary ability to deal with this very small number of extremely difficult cases, the quality of those judgments will suffer. It is in that area that the quality of arms, to which reference has already been made, is of singular significance. I wonder, and doubt whether, the Government have appreciated—because of the justification which they have advanced for this change—the importance of the courts having the assistance of advocates of the ability needed to ensure that the arguments on both sides of a case are properly deployed when the case is one of those peculiarly difficult cases, so that it is impossible, perhaps on both sides, to say what the prospects of success are. These are therefore the cases which would very much come within the small group which these regulations could affect.

For that reason I ask the Minister, new to his responsibilities, at least to give the House an assurance that the matter will be considered from the point of view of the judiciary. If ways are not found to assist in this small number of cases, I have fear for the quality of justice in this country.

If a case is one where a lot of money is at stake, where large awards of damages will be available, then it is possible to come to arrangements whereby litigants can be spared the burden of carrying the weight of the costs involved in conducting the litigation themselves. Funders are available now. However, in the small group of cases about which we are talking no such funding is available. There is nothing which the funders would gain because there will be no judgment from which they can benefit at the end of the day.

In that situation, I say that one should look at the matter and ask oneself whether this is a case where the wrong target has been drawn in order to try to achieve noble objectives. If it has, it is very important, even though it is late in the day, that action is taken to ensure that the system of justice in this country does not suffer in consequence.

[Lord Phillips of Sudbury (LD)]

My Lords, I do not propose to go over the ground that has been so ably ploughed by the speakers thus far. I am afraid that I am not going to lend my noble friend the Minister any solace, because I fear that I, too, am strongly of the view that the measure that deals with borderline cases—the merits criteria statutory instrument—is flawed, and it is flawed in a profound cultural way. As others have rightly said, justice is not like most other forms of government expenditure; it goes to the very heart of our society.

As I said, I shall not replough old ground, although I should like to remind the House that in the consultation, which lasted for only two months, there were 16,000 written submissions, which is quite extraordinary. The vast majority of them were, as the noble Lord, Lord Bach, has already said, against these provisions. I simply want to quote paragraph 234 of the report of the Joint Committee on Human Rights issued on the 13th of last month. It is the seventh report of the Session and it deals with the matters that we are talking about tonight. In referring to the present situation—the status quo—it says:

“We were told by our witnesses that the Legal Aid Agency scrutinises the merits of borderline cases closely, and funds very few borderline cases, in effect exceptional cases”.

That is the point. Only 100 or so cases are involved, and I think that the sum of legal aid estimated to be at stake is around £1 million. Therefore, they are already exceptional cases and we must realise that they reverberate throughout the system. As the noble and learned Lord, Lord Woolf, has just reminded us, under the common law system of precedent, one of these cases can affect thousands of cases, which will not be brought as a result. Therefore, there is that to consider.

My other point is that the Joint Committee report is absolutely unequivocal about these borderline cases. It is worth reading—and I am sure that most noble Lords here tonight have read—the fourth chapter and the three conclusions at paragraphs 43 to 45 of the final recommendations and conclusions. I urge the Minister—perhaps he will refer to this in summing up—to give an undertaking to the House that the Government will not wait the three to five years allowed for under the LASPO Act for a review of the whole of that vital piece of legislation. However, if they persist in pushing forward with these measures—which I hope very much they will not—I hope that they will make a special case of borderline cases and review early the impact of what they are doing, not least in terms of access to justice and the cost of justice.

As the charity Justice, in its report on this matter, rightly pointed out, the cost to the Exchequer of depriving many of these borderline cases of legal support and the resulting wastage could far exceed the £1 million or so of savings that we are talking about here due to the length of cases, because there are so many more litigants in person, and so on. I hope that my noble friend may be able to say to the House tonight that there will be a special review of these borderline cases in the light of the criticisms made here and in the Joint Committee report and the criticisms made by many others.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Woolf

Monday 23rd April 2012 Lords Chamber

[Lord Woolf]

My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.

In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation—or, if I may say so with feeling, interpret the legislation—by setting out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.

I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,

“swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law … and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

The purpose of the amendment is to give the Lord Chancellor scope to do just that.

I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.

[Lord Phillips of Sudbury]

Given the noble and learned Lord’s huge experience in these issues, would he kindly tell the House whether he considers that this amendment does not place any Lord Chancellor in any jeopardy in respect of judicial review? If that is the case—that is what I understood the noble Lord, Lord Pannick, to say—does that not make the provision toothless?

[Lord Woolf]

No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.

On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.