Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

Lord Bach Excerpts

Wednesday 27th March 2013 Lords Chamber

Moved by

[Lord Bach]

To move, as an amendment to the above Motion, at end to insert, “but this House regrets that Her Majesty’s Government have responded to the opinion of this House, as expressed in a vote on 3 December 2012 on a fatal motion in respect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 on inadequate provision for legal aid in first tier tribunal cases, by bringing forward this order which excludes even that limited provision.”

[Lord Bach]

My Lords, I hope to move this regret Motion in an entirely non-partisan manner, because this matter in my view affects the whole House and its reputation and it is not meant in any sense as an attack on the Minister, who has been on the side of the good within the department in trying to make sure that this ghastly Act of Parliament was modified.

Some noble Lords may remember the background to this state of affairs and others will not, so I hope that the House will forgive me if I set out as briefly as I can what has happened and why I believe that, in this case, the Government have behaved in a manner that has offended both against the constitutional arrangements that bind our country together and, importantly, against a small group of our fellow citizens who have been deprived of a legal right that they were promised by the Government.

The story begins on 17 April last year, when, in another place at the ping-pong stage, the then Lord Chancellor made an important concession to ensure that the LASPO Bill got through. An amendment had been put forward there to allow legal aid for welfare benefit reviews and hearings, supporting an amendment already agreed in this House and moved by the noble Baroness, Lady Doocey. To prevent that amendment succeeding, the Lord Chancellor made it clear that Her Majesty’s Government would compromise and allow legal aid for legal advice at First-tier Tribunals in cases where a point of law arose. He wanted time to ask his department about the best way of implementing the pledge. He was given that time, in due course the Bill became law, and we waited for the pledge to be implemented.

A Written Ministerial Statement appeared on 18 September last year. Surprisingly, this Statement did not announce how the major concession, which had been pledged by the Lord Chancellor, had been put into effect. Instead, in its place, a new—I would say minor—concession was announced that would affect many fewer people but would arise in a limited number of cases before the First-tier Tribunal. These were called errors of law cases, and according to a parliamentary Written Answer given to me by the Minister on 23 November last year, there were 692 errors of law cases in the year 2011-12, and 173 between April and June 2012. Of course, not every case would involve legal aid being granted, but—this is important in my submission—some would. If no one was to benefit, why would the Government have put forward this minor concession at all?

As the Minister just told us, on 3 December last year, the Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2012, which included the minor concession, was debated in your Lordships’ House. I tabled an amendment that declined to support the regulation because, first, it did not fulfil the Government’s undertaking in the Commons on 17 April and, secondly, it would mean that claimants would not receive legal help on a point of law. The debate followed. It was crystal clear that all those who spoke in favour wanted the Government to withdraw the regulation and come back with something a little more generous. They were definitely not arguing for there to be no concession of any kind, which would have been an absurd position for them to have taken. We were saying to the Government, “Keep your word, and if you can’t do that, come back with something a bit more generous”. My amendment was supported by speeches from around the House, including those of the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lord, Lord Pannick; and, from the Liberal Democrat Benches, those of the noble Lord, Lord Phillips of Sudbury, the noble Baroness, Lady Doocey, and other noble Lords. In the event, the Government refused to do what was asked, and the regulation was defeated, by 2,001 votes to 191.

[Noble Lords]

Oh!

[Lord Bach]

My Lords, I apologise—it is nearly the end of term. I meant 201 votes to 191. I was about to say, that in the somewhat heightened minutes before the vote was held, which were a good deal more heightened than they are at present, the Minister warned—or, to use another expression, threatened—that a vote against the regulation would not necessarily result in a better offer. He did so in such a way, if I may say so, that some noble Lords may even have been swayed to vote for my amendment and against the regulation.

The Government did not decide there and then not to come back with a further regulation. Indeed, on 18 December, 15 days after our debate and just before the Christmas Recess, the Minister’s Secretary of State—now the Lord Chancellor—the right honourable Chris Grayling, was asked in the Commons at Justice Questions about this very point. My honourable friend Andrew Slaughter MP said:

“The proposals finally brought forward were so inadequate that two weeks ago their lordships voted them down and told him to come up with something better. Now we hear that the Secretary of State, in a fit of pique, intends to do nothing at all. Why is he breaking a promise to Parliament and to some of the most destitute and vulnerable people in the country?”.

The Lord Chancellor replied:

“As the hon. Gentleman will be aware, we have promised to consider the decision by the Lords. I was a little surprised to see the rather unusual step taken in the other place of voting down a statutory instrument that was granting a concession, but we will of course review the issue and decide how to proceed”.—[Official Report, Commons, 18/12/12; col. 694.]

In the new year, on 8 January in this House, the Minister, in reply to an Oral Question, said that the Government would not be putting forward another regulation.

As so often in this House, the noble Lord, Lord Pannick, who cannot be in his place today, put the killer question that, in my view, the Minister cannot answer. He asked:

“Given that the House rejected as inadequate the limited concession on legal aid in First-tier Tribunals, is it not truly perverse for the Government to respond by withdrawing even that?”.—[Official Report, 8/1/13; col. 13.]

Why is the Government’s behaviour so perverse? Why am I arguing that their line, not to put forward another regulation, is so wrong? It is for two reasons. The first is the constitutional offence that has been caused to Parliament. The Executive are supposed to be subject to Parliament. Parliament’s wish that a more generous concession was required was clearly expressed on 3 December; it cannot be more clearly expressed than by a vote of a House of Parliament. The House voted for this.

The Government could have brought back their minor concession if they had wanted to. For them to refuse to bring back anything else is—I choose my words with some care—treating Parliament with contempt. It is saying to Parliament, “We are the masters, not you. We don’t care what you say, we will do what we want”. I liken it to the behaviour of a spoilt child who cannot get his way. The conduct is more that of a playground bully than a mature, grown-up, confident, democratic Government. What has happened here is dishonourable, and my amendment rejects this behaviour.

The second reason, which is perhaps as serious, is that two groups of people who were led to believe that they might get legal aid for advice for First-tier Tribunals—those with a point of law and those in error-of-law cases—have had their legitimate expectations removed by Her Majesty’s Government without any consultation. Why? For the first group, the Government would cite the cost and say that they could not afford the major concession offered by the right honourable Kenneth Clarke in April last year, but what is the reason for this second group? It is not a big group, but it undoubtedly includes some people. Is cost the reason? We have never been told the cost of this minor concession. Or is it—I am afraid to say—just plain spite? That is unattractive in an individual and just not acceptable in a Government. This meanness of spirit is and should be offensive to this House and to the wider world.

I feel strongly that the civil legal aid cuts that will come in on 1 April, in a few days’ time, will demean the reputation of our legal system. I feel even more strongly that in this limited case—I do not want to claim more for it than actually exists—the behaviour of the Government towards Parliament, towards this House in particular and towards its citizens is unacceptable. I beg to move.

--- Later in debate ---

[Lord Phillips of Sudbury]

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—

[Lord McNally]

Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.

[Lord Bach]

No.

[Lord McNally]

Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.

[Lord Bach]

I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.

For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.

The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—

[Lord McNally]

I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.

[Lord Bach]

No.

[Lord McNally]

Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.

[Lord Bach]

I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.

If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.