Legal Aid

Lord Hope of Craighead Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Hope of Craighead]

My Lords, I thank the noble Baroness, Lady Deech, for initiating this very important debate. It is with some regret that, so recently having returned to the House after the lifting of the disqualification that attached to me as a Justice of the Supreme Court, I find myself speaking for the first time on such an occasion as this. It is a sad occasion because one cannot help feeling that the need for this debate ought not to have arisen at all. I find it hard to believe that a Government who truly understood and respected the rule of law, who had taken the trouble to appreciate what that phrase really means and assess the consequences of what they had in mind, would have even contemplated introducing some of the proposals that have attracted so much criticism this afternoon.

Let me emphasise at the outset that I have no personal interest of any kind in the outcome of these proposals. I left legal practice long ago and have now reached the age when I am no longer allowed to sit as a judge. I can claim, however, to be an informed observer. My experience as an appellate judge during the past 24 years has been very wide. Judicial review has been a significant part of my work, as has dealing with cases supported by legal aid. I am also well aware of the pressure on public funds and of the need to make savings, and to continue to make savings year after year wherever possible. I had to face up to that problem time and time again when I was the Senior Presiding Judge in Edinburgh and, more recently, as the Minister will know, as the Deputy President of the Supreme Court. I have done my best to promote efficiency and the saving of costs wherever possible. I have supported the Government and will continue to support them in their search for further savings, including in the administration of legal aid. Of course there is no bottomless pit.

The Government are right to seek to target their limited resources on those cases which really do justify legal aid and on those people who need it, but that requires the exercise of judgment based on sound research and open-minded consultation. There is one cardinal principle which until now has always been respected. It is set out in Section 1 of the Constitutional Reform Act 2005, to which the noble and learned Lord, Lord Irvine of Lairg, referred: the constitutional principle of the rule of law and the Lord Chancellor’s role in relation to that principle. It is worth recalling that the clause was not in the Bill as originally drafted. It did not appear until Third Reading in this House following a recommendation by the Select Committee on the Bill. Perhaps it was thought to be so obvious that it was not necessary to state it at all, but that was not the view of the Select Committee, which thought that it should be there and could not be dismissed as unimportant. It is indeed fundamental to the continued existence of our democracy, but the important point I would emphasise is that the rule of law exists for the benefit of everyone and it is for everyone to respect it. There can be no exceptions at whatever level of government. What this means is that all persons and every public authority must regard themselves as bound by, and entitled to the benefit of, laws that are openly and publicly administered in our courts.

Time is very short and I have only a few points that I can make, particularly in relation to judicial review and the tests—the permission test, the borderline test and the residence test. I would invite the Minister to have regard to a paper circulated on 25 June by Dr Nick Armstrong of Matrix Chambers in which he analyses the costings of these various proposals. For example, with prison law he draws attention to the fact that of the overall savings in the proposals that the Government have in mind, which are assessed to be £6 million, £4 million of those are said to come from prison law. Dr Armstrong, however, has indicated—his work has been seen and approved by the Parole Board—that the additional costs that result from these savings may come to as much as £10 million as a result of the continued detention of people who have no access to prison law. That is quite apart from the constitutional implications.

The truth, if one has regard to the consequences of these proposals and burrows underneath what is being proposed, is that the efficient functioning of the rule of law will no longer be there for everyone. As so often one finds on further examination, it is the weakest, the most vulnerable and, let us face it, the most unpopular who are at risk of being unprotected. For them, the rights that are at issue here are the most basic rights of all, and the savings are at risk of being overtaken many times over by increased costs.

On the permission test, to which the noble Lord, Lord Marks, referred, why not fund the early stages of seeking permission before it is sought? At present, 60% of cases are resolved at that stage, especially social welfare cases, so it seems odd that the work done by the firms that provide these services should not be paid for so that they can meet the costs of running their businesses.

Time is too short for me to go further. However, I respectfully ask the Minister to do two things. First, I ask him for an assurance that the Government’s mind is still open on all these issues and that they will look at the costings in the paper to which I have referred. Could he say how it is proposed to bring these proposals into force, given that they raise fundamental constitutional issues? I endorse what has been said by the noble Baronesses, Lady Deech and Lady Kennedy, that detailed parliamentary scrutiny, line by line, is required. This is a matter that requires primary legislation. I hope that we will not have to face up to a succession of regret Motions on delegated legislation, which would be wholly unsatisfactory.