Legal Aid

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

My Lords, if the Lord Chancellor’s welcome concession last week on choice of representation is anything to go by, it appears that these proposals are not to be regarded as set in stone and are well worth debating. I join with those who thank the noble Baroness, Lady Deech, for enabling this to happen. It is much to be hoped that other of these proposals too will similarly come to be recognised as ill-judged and will be abandoned. It is on just one of these that I propose to focus—one relating to judicial review not among those identified by my noble and learned friend Lord Irvine of Lairg. It is the proposal that lawyers should not be paid for their work in making application for judicial review unless eventually permission comes to be granted. It is crystallised as question 5 on the consultation paper.

First, I want to digress just briefly to express a few heartfelt words of regret at the radically changed role of the Lord Chancellor in public life, following the Constitutional Reform Act 2005. How unfortunate it is that we no longer have as Lord Chancellor someone in the tradition of the great holders of that office who, quite recently, included the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg. It is a great privilege to have heard the noble and learned Lord, Lord Irvine, in this debate. He chooses very fastidiously the occasions when he invites the attention of this House. What huge benefits to the office they brought: not merely were they highly experienced and distinguished lawyers in their own right but, no less importantly, their voices were authoritative and statesmanlike at the very heart of government. They were voices that recognised the central importance in our democracy of the rule of law, the independence of the judiciary and rights of access to justice. Such Lord Chancellors had already, of course, achieved the summit of political life; they were not career politicians with personal ambitions still to be realised.

Let me make it quite plain that I have nothing whatever against the present Lord Chancellor. He became such after I retired and I do not know him. Nor do I have anything against career politicians. No doubt they are essential to any healthy democracy. However, I cannot pretend to have the same confidence in proposals of this sort that emanate from a career politician with no background whatever in the law as I would have felt, and indeed used to feel, towards proposals from Lord Chancellors past. Grateful though one is for the recent concession as to choice of legal representation, it does not fill one with confidence that these proposals as a whole have been properly thought through by someone with real knowledge of our legal processes, properly sensitive to the imperative demands of access to justice.

I turn, necessarily briefly, to the proposal that concerns me most, the proposal that, unless permission comes to be granted for a full judicial review, no costs at all—only non-legal disbursements—will be paid for work carried out. It is opposed, perhaps unsurprisingly, by all parts of the profession, including notably the Administrative Law Bar Association, of which I am proud to say I was president for many years. It is also strongly opposed by the Judicial Executive Board—that is, the higher judiciary—the Civil Justice Council and Her Majesty’s Circuit Judges.

These responses are cogently and convincingly argued, ALBA’s perhaps above all. It is very difficult to suppose that anyone could fairly reject their conclusions. Manifestly, the proposal will result in fewer challenges to administrative decision-making and there are those—I am not among them—who would suggest that this is their central and cynical purpose: an attempt to insulate the Government, as far as possible, from legal challenge. However, I regard the proposal not as mischievous but merely as fundamentally misguided. It is misguided because it stems from a basic misapprehension of the place of permission in the process of judicial review and it would result in consequences far removed from those intended and very damaging to this critical part of the courts’ jurisdiction—the ability to supervise the proper exercise of public power.

Bear in mind that, as of just last week, 1 July, following the earlier changes to legal aid, when the High Court refuses permission to proceed on the documents, the judge now can certify an application as being “totally without merit”. In itself, that prevents the applicant requesting an oral hearing of the application; all he can do is to make one further application on the documents. If more than that is required, let the lawyers be deprived of costs in that very limited category of cases on the certification of a judge but not in the altogether larger category envisaged by this present proposal.

The problems with this proposal are so many and so various that, alas, I have no time to spell them out. All one can say is that it may discourage solicitors taking even perhaps the strongest cases. The strongest cases are those where the defendants are most likely to respond early by making the concessions that make judicial review ultimately unnecessary and thus inappropriate, but there are so many more objections. Read ALBA’s full letter of response and you will not persist in this ill-judged proposal. I suggest that it would damage the process profoundly; it is a rotten idea and it really ought to be abandoned.