Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Monday 5th March 2012 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I beg to move that this Report be now received.

[Lord Howarth of Newport]

My Lords, before the House receives this Report, may we have an assurance from the Leader of the House that we will not be wasting our time as we scrutinise the Bill and offer our advice to the House of Commons by way of amendment? Will he confirm that there is no necessity for Ministers to advise the House of Commons to claim financial privilege in relation to Lords amendments that may have public expenditure implications, which in the case of this Bill would be modest at the most? Will he assure us that this time the Government will not hide behind 17th century resolutions of the House of Commons to prevent the House of Lords in the 21st century from doing its proper job as the revising Chamber of a bicameral Parliament?

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[Lord Newton of Braintree]

I am sorry, but I cannot quite make it. I shall try again later.

[Lord Howarth of Newport]

My Lords, we shall look forward very much to hearing the noble Lord, Lord Newton, in a moment.

This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.

[Lord Newton of Braintree]

My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because—dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome today, but he will have expected that—the more that I look at the provisions, the more I doubt that the Government are committed to the principle reflected in the amendment to which most of us would be committed.

I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice’s motto being, “We’re the Ministry of Justice, here to help”. Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary’s broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.

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[Lord Howarth of Newport]

My Lords, I should also like to support the amendment moved by my noble friend Lord Hart of Chilton. I will be interested to hear from the noble and learned Lord the Minister why, in the way the Bill has been formulated, there is a specific insistence that the director of legal aid casework should be a civil servant. There are possibly conflicting connotations in the term “civil servant”. On the one hand we always want to think of civil servants as people who are politically impartial; but on the other hand, it is the responsibility of civil servants to carry forward the political programme of the elected Government of the day. In that latter sense I share the anxiety expressed by other noble Lords that the director of legal aid casework, being a civil servant, may not be as sufficiently independent of government as is desirable and, importantly, may not be seen to be sufficiently independent.

We also take as an important principle of our constitution that the operation of the courts and the administration of justice should be separate from the operation of the Executive. Here, however, we have a proposed new set of arrangements which clearly brings decisions about the allocation of legal aid in-house. We were told in Committee that the director of legal aid casework will be an individual in charge of an executive agency. Perhaps it is the case—I do not know—that the directors of executive agencies are always civil servants, but if they are not, I would like to know why it is felt to be so crucially important that in this instance he should be a civil servant.

My noble friend Lord Hart touched on the possibility of conflict of interest. Very often the Government or one of their agencies will be the defendant in a case. Can it be right that a civil servant will determine who should or should not have access to justice in a case concerning, for example, judicial review, special educational needs, community care or the abuse of position or powers by a public authority? There is at least the risk of the perception that the odds will be stacked against a would-be litigant seeking remedy in the courts where there has been misbehaviour or abuse by a public authority.

In Committee the noble and learned Lord, Lord Woolf, made the case that it would be desirable that the person holding the office of director of legal aid casework should be someone with a legal background who, because of his experience and formation, would have a deep understanding of the way the courts work and of the legal system. He also made the point that it would be undesirable that the director, being a civil servant, should be expected by other senior civil servants working in the Ministry of Justice necessarily, as it were, to conform with their wishes. It is essential that the director of legal aid services should be both seen and heard to stand up for legal aid and those elements of the justice system that legal aid has always been, and I think still is, intended to secure.

I shall revert to a question that I raised with the noble Lord, Lord McNally, in Committee. Will the director of legal aid casework be allowed to have a public voice? If, for example, he comes to the view that directions or guidance issued by the Lord Chancellor or provisions made by the Treasury to support legal aid are inadequate or in some other sense wrong, will he be entitled to speak out publicly on behalf of legal aid, the beneficiaries of legal aid, or the people who should be its beneficiaries? The noble Lord, Lord McNally, told us that a framework document would be produced that will set out the governance and reporting arrangements for the relationship between the Lord Chancellor and the director of legal aid casework, and he assured us that that document would reflect the principle of independence of decision-taking by the director. Can the noble and learned Lord tell us whether the document is now available so that we can have the benefit of it as we consider the extent to which we should endorse the Government’s proposals or amend them?

[Lord Clinton-Davis]

My Lords, I agree entirely with the points just made by my noble friend. The views of the legal profession—the Bar and the Law Society—ought to be taken into account, and perhaps the noble and learned Lord who is to reply to the debate can comment on that. My understanding is that both have made submissions to the Government about their concern—concern which is profound and goes to the heart of what we are talking about. It is essential that the director’s independence from the Government is ensured and underlined, so there can be no cavilling about this. The issue is vital—always provided, of course, that the caveat entered by the Opposition’s amendment is underlined as well.

The final point I want to make is this. We are not legislating for the immediate future, we are legislating for the long term. If we are wrong, we can always amend it, but the principle that ought to be underlined in this debate is exactly that—that we are debating for the long term.

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[Lord Wallace of Tankerness]

I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point—and there is concern across the House on this—is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.

[Lord Howarth of Newport]

We accept entirely and welcome that the Lord Chancellor will have no power to direct or even guide the director of legal aid casework, but what about classes of case? Suppose the Lord Chancellor thought that too much legal aid was going to women who are victims of domestic violence, if we succeed in carrying the amendment that was passed earlier today all the way through. Would the Lord Chancellor be able to give guidance to the director that he ought to ease up in providing legal aid in that category of case? We have to be concerned on the broader point that the noble Lord, Lord Phillips of Sudbury, expressed so strongly in Committee and just now.

[Lord Wallace of Tankerness]

For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward, we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.

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[Baroness Prashar]

My Lords, I support this amendment, which was so ably moved by the noble Lord, Lord Bach. He moved it in a very rational and considered manner. Therefore, there is not much that I wish to add, other than to say that the Government justified the cuts to legal aid in Part 1 on two grounds: savings to the public purse and the fact that these changes can be made without seriously damaging access to justice for the most vulnerable. However, we have heard a great deal from a range of organisations which say that the impact on the most vulnerable will be enormous. We do not know what the impact will be on courts, local authorities and a range of other agencies.

As far as can be ascertained, neither premise is based on firm evidence. The MoJ itself acknowledges that it is speculating on the likely effects of its proposals. What about evidence-based policy-making? Therefore, I urge the Government to undertake this comprehensive assessment of the impact of the Bill before it is implemented. Essentially, it is not just common sense but good practice and good planning. As has already been indicated, it will not stop the Bill but it will ensure proper planning and that the Bill is implemented with the knowledge of what the likely impact will be.

[Lord Howarth of Newport]

My Lords, I wonder whether the Minister could tell us a little more about when the Government anticipate commencement. What is the timescale on which they propose to introduce these changes? Unless I fail to remember, we have not been advised of that. It will take a little time to introduce these changes and we are in a period of economic troubles. An upheaval on this scale—reforms with such far-reaching implications, introduced in the circumstances of the British economy, with the consequential stresses and strains on our society—needs to be handled with delicacy and care. It would be consistent with the principles of good administration, which the noble and learned Lord, Lord Wallace of Tankerness, mentioned in our previous debate, for the Government to pause and consider again what the consequences of their policies may prove to be before they go to the final stage and introduce these changes.

The noble and learned Lord, Lord Wallace of Tankerness, invited us to accept that principles of good administration mean that guidance and direction should be kept continuously under review. I am not entirely persuaded by that. There is often a case for allowing people on the front line—the providers and administrators of public service—to have a period of policy stability and be able to get on with doing their job. However, that assumes that we have come to the point at which it is appropriate to introduce the policy changes. Thereafter, I am rather in favour of allowing officials and civil servants to get on unmolested and do their job, at least for a period.

It is not only a period of intense economic difficulty but one of major policy and administrative upheaval in which the Government contemplate introducing these changes to the system of legal aid. There will of course be reforms to the welfare system. If we look at the categories that my noble friend Lord Bach has specified in proposed new subsection (1)(a) of his amendment, we see a series of categories of people who will be affected by the changes in welfare policy. On children and young people, the House does not need me to emphasise the importance of taking the greatest care to ensure that we do not place them in such a perfect storm of change that they are at risk of unnecessary instability or, one might say, unnecessary trauma.

For people with disabilities, it is not only the reform of the welfare system—the switch from disability living allowance to personal independence payment—and the constraints on their benefits that the Government are introducing that are at issue here, but the reforms to the health service. Surely we all accept that people with learning, physical, mental and psychological disabilities warrant our very particular, prudent and humane care as policy change is introduced. Again, it would be fitting for the Government to pause and review all the circumstances that their policy and other factors are creating in the lives of people with disabilities before they remove the legal aid that enables such people to make their case and challenge administrative decisions.

In these economic circumstances, women are particularly vulnerable in their employment. Again, special care is therefore needed. While the Government are keeping legal aid to support people who may be under immediate threat of eviction from their homes, there are other kinds of housing-related problems for which people are no longer to be supported by legal aid. For example, if they are being harassed by their landlord or their landlord fails to maintain the property in decent condition, they will no longer have the support of the legal aid system to give them redress in those circumstances. Women, children and young people are plainly vulnerable, particularly at a time when there is such a shortage of social housing and rents are soaring in the private sector. Therefore, it is essential that the Government should take stock and review the position before pressing the button to implement their new policy on legal aid.

We have debated the position of victims of domestic violence at length today. I hope that they will at least be brought back into scope.

Coming to the fifth category that my noble friend indentifies in his amendment, we know that black and ethnic minorities are represented disproportionately among the poorest in our society. We know that they often have all too fragile a position in the labour market. Again, I counsel that the Government owe it to them and to society as a whole to take great care where they are concerned.

We then move to a different set of concerns expressed by my noble friend Lord Bach. He rightly raises the question of what the impact of the Ministry of Justice’s policies may be on other government departments. We have had the benefit of seeing the study that was produced by King’s College London, which I am sure the Minister has considered with great care. However, it is a reasonable proposition and anticipation that people who are no longer in a position to maintain their rights in the courts may find themselves becoming dependent on other aspects of state provision, particularly the health service, and particularly in situations of homelessness. I do not know what consideration the Ministry of Justice has shared with the Department of Health or the Department for Communities and Local Government—to name two departments that one can immediately imagine having to pick up the tab for the MoJ’s policies—but I hope that, even if this legislation is enacted, the Government collectively will continue to think about what the totality of this policy’s effects will be. Many of us consider that the very small savings that the Ministry of Justice may achieve in the legal aid budget will be dwarfed by the knock-on expenditure consequences for other government departments. A hard-headed cost analysis should be undertaken by the Government before they implement the policy.

We know that there is a widespread apprehension, certainly extensively in the legal profession, that courts and tribunals may also face additional costs and difficulties in consequence of the removal of legal aid from various categories of would-be litigants, who may feel that they then have no option but to be litigants in person. We have heard many testimonies in Committee, and in the advice and evidence offered to us by organisations seeking to educate us on what the consequences of these policies may be, to the effect that there will be a serious impediment to the courts transacting their business at the speed at which they ought to proceed. That must be a matter of concern. It ought to be a matter of particular concern to the Ministry of Justice because if there are impediments to the courts getting on with their work properly, surely there will be cost implications and other unsatisfactory implications for the department itself. Local authorities, through social services departments, will have to carry a heavy burden. There, again, I am sure that my noble friend is right to include them in his list.

I will say no more about the possible implications for homelessness or ill health, let alone suicide, but I would like to say a word or two about the impact that this policy may have on the commission of criminal or anti-social behaviour. It seems to me that if those who are most disadvantaged in our society and feel themselves most vulnerable are driven to say to themselves that there is no justice for them and no way in which they can secure their proper rights, they may reach a point of despair and may feel justified, or simply driven, to engage in criminal or anti-social behaviour. That is surely something that the Ministry of Justice cannot want.

Finally, my noble friend invites the Government to make an assessment of the impact of their policy on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux. These are charitable organisations. I note that we see authoritative figures coming, I think, from the National Council for Voluntary Organisations but possibly some other well respected body in the charitable sector, which estimate that the reduction in public funding for the charitable sector by the year 2016 at the hands of this Government and through local government underfunding will be of the order of £3.3 billion. Therefore, it is inevitable that charitable provision of legal advice and assistance will be reduced. It is part of the responsibility of the Lord Chancellor and his ministerial colleagues in the Ministry of Justice to think again very carefully about what the situation is, and can reasonably be anticipated to be, before they commence the implementation of the policy. For all these reasons, I am very happy to support the amendment moved by my noble friend Lord Bach.