Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness D'Souza Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Faulks]

My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.

First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.

Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.

There is another reason. However well planned the cuts are—I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment—it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.

I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,

“the LSC will monitor the situation to ensure that they are aware of any market shortfall and the Government will work closely with them so that that they are able to respond promptly, effectively and appropriately”,

should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships’ Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.

The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should remind the Committee that, if this amendment is agreed to, I cannot call Amendments 23 to 27 for reasons of pre-emption.

[Baroness Butler-Sloss]

My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.

As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.