Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.

[Lord Bach]

I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.

[Lord McNally]

The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.

Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.

The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.

This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.

Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.

In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.

However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.

Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.

Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.

The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.

Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.

--- Later in debate ---

[Lord Thomas of Gresford]

The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):

“The Lord Chancellor may not give directions or guidance about the carrying out of … functions in relation to individual cases”.

That is fair enough, but he must,

“comply with directions given by the Lord Chancellor about the carrying out of”,

his “functions”, and he must,

“have regard to guidance given by the Lord Chancellor about the carrying out of”,

his “functions”.

What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, “Now, look here, you’ve got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full.”? What exactly is intended by Clause 4(3)?

[Lord Bach]

My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.

Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.

The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.

I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:

“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—

this is the clever point—

“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.

As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.

Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.

I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.

I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.

--- Later in debate ---

Debate on whether Clause 4 should stand part of the Bill.

[Lord Bach]

My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.

[Lord McNally]

I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.

--- Later in debate ---

Moved by

[Lord Bach]

18: After Clause 4, insert the following new Clause—
“Legal Aid appeals
(1) Decisions of the Director under this Part shall be reviewable by a first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007.
(2) The primary functions of the tribunal in respect of subsection (1) are to—
(a) consider applications for review; and(b) conduct and determine reviews,following a decision being made by the Director in respect of eligibility for legal aid under Part 1 of this Act.(3) A decision of the tribunal may be reviewed or appealed in accordance with the Tribunals, Courts and Enforcement Act 2007.”

--- Later in debate ---

[Lord Bach]

This, I hope, is one of the least controversial of our amendments. If enacted, it would ensure that the decisions of the director of legal aid casework were subject to the ordinary standard mechanism within the United Kingdom for challenging decisions of administrative bodies—that is, the tribunal system. We are going to hear a lot about tribunals during the course of the Bill. The Government’s line about tribunals—they have told us this already and will no doubt repeat it—is that the First-tier Tribunals that were set up to be user-friendly are a success, are the right forum for challenging administrative decisions and are an effective forum. So we know that the Government support the system of tribunals.

We have an array of First-tier Tribunals, the name given by the Tribunals, Courts and Enforcement Act 2007 to those bodies where appellants can appeal a decision in the first instance. Each of those tribunals is there to ensure that decisions made by emanations of the state are legally sound. For example, the General Regulatory Chamber of the First-tier Tribunal hears appeals against decisions by the Charity Commission, the Claims Management Regulator, the Office of Fair Trading, the Environment Agency, the Information Commissioner and local authorities. The Social Entitlement Chamber, where we would imagine these cases being heard, hears appeals against decisions by bodies that deal with social welfare and disputes about income support, jobseeker’s allowance, pensions and unemployment support allowance. There are four other chambers but the Committee will be pleased to hear that I do not intend to list all their duties. It should be clear that the established mechanism for challenging decisions by state bodies is the tribunals system, and we believe that in this amendment we are following the logic of the existing system.

--- Later in debate ---

[Lord Phillips of Sudbury]

Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.

[Lord Bach]

My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.

[Lord Thomas of Gresford]

My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,

“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.

That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.

Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.

--- Later in debate ---

[Lord McNally]

As I say so often, I am not a lawyer—thank God.

There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.

[Lord Bach]

I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.

I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.

For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.

Amendment 18 withdrawn.