Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Williamson of Horton Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.

[Lord Williamson of Horton]

It is covered by the Bill, in subsection (5). The directions have to be published. Whether they should be in the Bill at all is another matter; but if they are in the Bill, they have to be published.

[Lord McNally]

I am also told that the director’s terms and conditions will govern the circumstances in which they could be dismissed. Some of the concerns that have been raised are either in the Bill or will be covered by guidance or in published directions and terms of reference from the department.

I go back to the point made by the noble Lord, Lord Bach. Clause 4 is not an attempt to create some stooge of either the Ministry of Justice or the Lord Chancellor of the day; it is to have somebody who will command public confidence and respect. I am not in a position to take note, here in a Committee stage, of the points that have been made; I will, as I said earlier, draw the Lord Chancellor’s attention to the views of the contributors to this debate. It would probably be of help both in looking forward and in winding up this debate if I were to set out the position as we see it now.

Amendment 13 seeks to introduce into the Bill a specification for the role of the director, in particular requiring that the person designated as director has such qualifications and experience in securing access to legal services for individuals as the Lord Chancellor considers appropriate. The amendment also seeks to have the concept of independence, and specifically the independence of the director when carrying out functions under Part 1, incorporated into the terms and conditions of the director’s employment. Amendment 17 provides a definition of “Minister of the Crown” to reflect the reference to the same in Amendment 13.

These are unnecessary amendments. Relevant experience and qualifications are, of course, factors that are taken into account in any appointment, and the recruitment of the director is no different. We can see no persuasive reasons why it should be necessary to include these considerations in primary legislation. The Committee should also note that the framework document which will govern the relationship between the Ministry of Justice and the new executive agency will also reflect the principle of independence of decision-making. The incorporation of this principle into the terms and conditions of the director would add nothing as the effect is already secured through the existing provisions.

Clause 4(2) requires the Lord Chancellor to,

“make arrangements for the provision to the Director by civil servants or other persons (or both) of such assistance as the Lord Chancellor considers appropriate”.

This means that the director will also be assisted by those with relevant experience and qualifications in discharging the director’s functions under Part 1 of the Bill, providing the necessary expertise alongside the director’s own. This support is essential as, in practical terms, it is not the case that the director will personally make all decisions on eligibility. That would be unworkable given the volume of applications made for legal aid.

Clause 5 sets out the director’s powers of delegation and, of course, this anticipates the delegation of decision-making on an individual application. As such, the need to ensure the requisite knowledge, skills, experience and qualifications for those making decisions applies to all and the proposed amendment does not further this imperative.

On the limb of Amendment 13, which seeks to have the concept of independence incorporated into the director’s terms and conditions, this is also an unnecessary amendment. The existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. In particular, while the Lord Chancellor can issue directions and guidance to the director about the carrying out of the director’s functions under Part 1, the Lord Chancellor is specifically prevented under Clause 4(4) from issuing directions or guidance about the carrying out of the director’s functions in relation to individual cases.

It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. This is an important safeguard.