Civil Legal Aid (Merits Criteria) Regulations 2012

Lord Beecham Excerpts

Monday 3rd December 2012 Lords Chamber

[Lord Beecham]

My noble friend is to be congratulated not only on bringing this amendment to the House but also on being elected Peer of the Year. At this rate he may turn into the Hilary Mantel of your Lordships’ House; she of course has won her second Man Booker prize, and it may be that next year my noble friend is awarded with his accolade again. I will speak briefly to his amendment before turning to that of the noble Lord, Lord Pannick.

The Opposition entirely support the case made by my noble friend, particularly because, embedded in the Government’s approach and reflected to some degree in today’s debate, there is some confusion between points of law and errors of law for the purpose of these regulations. The Citizens Advice briefing helpfully makes this distinction clear. It says:

“Furthermore in devising this whole policy Government appears to be confusing ‘points of law’ with ‘errors of law’. Whilst the majority of first tier welfare benefit appeals turn on ‘points of fact’ such as financial and other circumstances … many cases do raise significant legal issues over statutory interpretation (ie social security regulations), legal tests for disability”—

as referred to by the noble Baroness, Lady Doocey—

“or disputed application of … precedents etc. The tribunal making an error of law which may be subject to a right of appeal is a much narrower concept”.

We have to bear that distinction in mind when weighing the strength of the case made by my noble friend. It will be the very exceptional case, as the noble Baroness pointed out, that may qualify for that description of an error in law, which of course has to be self-certified by the tribunal itself—a peculiar process, one might think. We are certainly not in the position that the Minister mentioned in the debate in the House of Commons when he talked about 440,000 cases. That number is inconceivably large and, in my view, can be dismissed. Certainly, though, probably a good deal more than 650 cases could potentially arise if the definition were to deal with points of law. I hope that, bearing in mind the assurances given on the earlier occasion by the former Lord Chancellor, the House will support my noble friend’s amendment.

I also support the amendment moved by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Mackay, as I understand him. Indeed, there is a peculiar relationship between Regulation 53 and Regulation 39, but in my view it goes somewhat beyond the matter identified by the noble and learned Lord. In addition to the potential clash with Regulation 39(d), it strikes me that problems arise in relation to two earlier parts of that regulation, paragraphs (a) and (b). I remind noble Lords that all these matters have to be borne in mind when dealing with Regulation 53. Under Regulation 39(a) the director has to be,

“satisfied that the following criteria are met … the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case”.

That is a fairly open-ended requirement. Regulation 39(b) says that the director has to be satisfied that,

“the case is unsuitable for a conditional fee agreement”.

Suppose, though, that it was suitable for a conditional fee agreement; that of course does not necessarily mean that a conditional fee agreement is available. Suitability and availability are not the same thing. That reinforces the noble and learned Lord’s point that there is an inconsistency between Regulation 39 taken as a whole, not just in relation to Regulation 39(d), and Regulation 53. I hope that noble Lords will be convinced by that element.

There is a further matter that I need to touch on. The thrust of the Government’s proposals is to reduce the reliance on judicial review. We have to be concerned about this in view of recent pronouncements about the Government’s desire to reduce substantially the number of cases that can be advanced by that method, which is of course a principal method of holding the Executive to account. This is just one potential example, but I think that noble Lords will want to pay particular attention to it, having regard to the category of people who will be most affected by it. We should not lose sight of the fact that this may be part of a process of restricting access to judicial review that will go well beyond this particular category. In my submission, that is an additional reason for noble Lords to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern]

My Lords, am I right or wrong in thinking that any appellant who is unhappy with the decision of the First-tier Tribunal can ask it to review the decision?

[Lord Beecham]

Assuming that the appellant has the knowledge of that procedure, he might ask it to review its decision, but the review will amount to nothing unless the tribunal convicts itself, as it were, of an error in law. If it makes that mea culpa then under the Government’s amendment there is a potential for legal aid to be granted, but not otherwise.

[Lord Elystan-Morgan]

My Lords, I support both amendments. I am sure that it is not necessary for me to add my voice to the very distinguished contributions that have already been made in this regard. Both amendments turn upon undertakings that have been solemnly given—and, no doubt, in the best faith—by the right honourable Kenneth Clarke. I accept that completely. If there has been mischief, it has probably been the mischief of mandarins thereafter in trying to release him in some way from an undertaking that he solemnly and sincerely gave.

The other feature that is common to both amendments is that they deal with situations where preliminary machinery is set up before a person can qualify for legal aid. In both cases, in my view, that machinery imposes such a burden upon the potential applicant to make his or her case virtually impossible—in other words, a total denial of what otherwise would be a fair and just application by that person.

In the circumstances, bearing in mind the weight of authority that has been projected towards the Government in this case, it would be a very rash Minister who did not concede the obvious points made in the amendment moved by the noble Lord, Lord Pannick. If the noble and learned Lord, Lord Mackay, is correct about the interaction of Regulations 39 and 53, and if it be that Regulation 53 in this regard is totally and absolutely governed by the relevant provision in Regulation 39, then that is it—the Government do not lose one millimetre advantage, because that situation has already been covered and fully determined. However, if that is not the case, then it seems that the argument put so powerfully by the noble and learned Lord, Lord Goldsmith, must have come into play. That is that the director could come to the conclusion that indeed all reasonable avenues had been pursued but that there were unreasonable avenues that had not been pursued. That would be an absurdity and a miscarriage of justice. It is either one or the other.

As far as the amendment of the noble Lord, Lord Bach, is concerned, it seems to me that there again is an irrefutable case. I am not at all clear what triggers the situation where there would be a review by the first tribunal. Would it be something entirely within the discretion of that tribunal, or would it be on application? If it is within the discretion of the tribunal, it is a very strange situation that a tribunal is invited to consider whether it is in error.

Of course, I draw the distinction that has already been pointed out by the noble Lord, Lord Beecham. There is a world of difference between a point of law and an error of law. When a judge has adjudicated in a civil case and is invited to grant leave to appeal, he is not saying, “I am wrong”, or, “I am sure that I am wrong, please appeal”. What he is saying is that there is a point of law that is properly arguable. That is a very different situation from a tribunal which says, “We are wrong”. In fact, I do not know of any other circumstance where such machinery exists in law, but I am sure I will be corrected with regard to that.

The basic principle that we are concerned with here is that legal advice on a point of law should belong to the beginning of an action, not to the end of it. So much anguish will be saved by a very modest expenditure. I believe that so much money from the public purse will be saved because there are undoubtedly downstream costs which will be massive in scale in relation to this. However, above all it is a question of miscarriage of justice.

We think of miscarriage of justice as a situation where a tribunal has come to an utterly wrong decision. It is not limited to that at all. A miscarriage of justice occurs where a person has a just, meritorious case, and on account of lack of money is unable to have that case properly adjudicated. If you ask any decent citizen of this land, whatever politics or total lack of politics he or she may have, “Do you believe in a miscarriage of justice?”, we all know what the answer would be.