Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord Pannick]

My Lords, I am very disappointed by the Government’s response to the amendment on the purpose of legal aid, approved by this House on Monday. Noble Lords will know that this amendment had its origins in a recommendation of your Lordships’ Constitution Committee, of which I am a member. The recommendation was strongly supported by many noble Lords at Second Reading and in Committee. The amendment was approved in this House on Report by a majority of 45 votes. After the other place disapproved of the amendment, this House voted again on Monday night, and your Lordships approved an amendment in similar terms, this time by a majority of 15 votes.

At no stage during this parliamentary process has the Minister or anyone else on behalf of the Government made any proposal, publicly or privately, for meeting the concerns of this House, whether by a revision of the wording of the amendments approved in this House or in any other respect. That is despite what the Minister kindly described as the very high quality debates that we have had in this place.

In my view, to ignore the views of this House in this way by bringing forward no proposal whatever to meet the concerns expressed here is, at the very lowest, most regrettable. It is all the more regrettable when the issue is of constitutional concern. I hope that these views may be shared, even by noble Lords who did not support the substance of this amendment.

The sorry state of this saga is exacerbated by the application of financial privilege to this amendment, even though it expressly stated that the allocation of financial resources was a matter for the Lord Chancellor’s discretion. This raises issues of considerable concern, which I hope will be shared on all sides of the House. Of course I recognise that financial privilege is not a matter for the Government, but I have had no indication at all that the Government made any representations in support of my contention, shared by many other noble Lords, that it would be quite inappropriate to apply financial privilege to an amendment that expressly stated that financial resources were a matter for the discretion of the Lord Chancellor.

Notwithstanding these matters, I have, with regret, come to the conclusion that I can take this amendment no further. Noble Lords have asked the other place to think again and it has done so. Although I disagree with the result, I do not think it appropriate to invite the House to press the matter further. I should add that if I were a Member of a House of which 80 per cent of Members were elected, I would certainly persist on this matter. Furthermore, given the very limited time made available in the other place for consideration of the amendments that we passed in this House, and given the general absence of scrutiny of this legislation in the other place, I suggest that it is not the procedures of this House that are urgently in need of reform.

I hope I will be permitted to make one other observation; I do so despite the genuine respect I have for the Minister. The unsatisfactory manner in which the Government have treated this amendment is, I regret, typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally. The Government were defeated on this Bill on 11 occasions on Report and three times again last Monday. So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits. Part 1 of the Bill has been made marginally better by the amendments, which are the product of the considerable work done on all sides of this House. The Bill would have been marginally better if this amendment had been accepted, but this remains a bad Bill and there remains in particular a bad Part 1 in it on legal aid.

The Government’s general inflexibility on the Bill, as with Amendment 1 in particular, has involved a failure adequately to assess the impact of the provisions before their implementation, a refusal to take on board the fact that many of the financial savings at which Part 1 is aimed are illusory because the denial of access to legal services will result in other financial costs to the state for disadvantaged persons who will be denied the benefits to which they are entitled, and because of a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law.

The Government’s treatment of my Amendment 1 is, I regret, consistent with this inflexibility and narrow perspective. I am sorry to say that the product of the Minister’s hard work and the process followed by the Government on the Bill do not reflect well on this Government’s reputation. They have damaged access to justice, a fundamental constitutional principle, as this amendment sought to recognise. The Minister has repeatedly emphasised in this House that the Government have accepted amendments during the passage of the Bill, but those amendments have mainly been on matters that should never have been excluded from the scope of legal aid in the first place.

I pay tribute to the noble Lords, Lord Bach and Lord Beecham, for their tireless and eloquent work in exposing the defects in Part 1. I thank them, the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, for adding their names to the amendment. I thank all other noble Lords who supported the amendment during the passage of the Bill.

[Lord Howarth of Newport]

My Lords, the amendment moved by the noble Lord, Lord Pannick, on Monday, and the sense of it being approved twice in your Lordships’ House, sought to enshrine in Part 1 of the Bill access to justice as the objective of the Bill. Such a statement of principle was made in the Legal Aid and Advice Act 1949 and has been reaffirmed in every Act of successive Governments, including Conservative Governments, dealing with legal aid. When the Labour Government introduced the Access to Justice Bill in 1998, it included Clause 4(1), which instructs the Lord Chancellor to promote,

“the availability to individuals of services of the descriptions specified … and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.

At that time, the Liberal Democrats and Conservatives, in opposition, wanted to place further duties on the Lord Chancellor. The noble Lord, Lord Goodhart, speaking from the Front Bench on behalf of the Liberal Democrats, said:

“What needs to be stated at the outset is the reason for providing the funding”.—[Official Report, 19/1/99; col. 480.]

It would be helpful if the Minister, the noble Lord, Lord McNally, speaking as a Liberal Democrat, would explain to us why the Liberals have now changed their tune.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords—

[Lord Howarth of Newport]

If I may be allowed to finish my sentence, I would be grateful if the Minister would be willing to help us understand why the Government felt it appropriate to make that claim. As I have now finished my sentence, it is with pleasure that I give way to the noble Lord, Lord Thomas.

[Lord Thomas of Gresford]

The noble Lord suggested that the Liberal Democrats have changed their tune. The noble Lord will recall that in Committee, on Report and on Monday I said that this amendment meant nothing and added nothing to the Bill. I was supported by my noble friend Lord Lester, who said it was just water.

[Lord Howarth of Newport]

That may be the view of the noble Lord and his noble friend. It is not the view of the noble Lord, Lord Pannick, and those of us who supported him on two occasions in inviting the other place to think again about this matter.

[Baroness Butler-Sloss]

My Lords, I strongly support the noble Lord, Lord Pannick. It is manifestly absurd—to me, at least, and it may be to other Members of this House—that this particular amendment should be treated as having anything to do with financial privilege. I have always been very hesitant to vote against the Government at the ping-pong stage, as I have always thought that they should get their business through. I voted with the noble Lord, Lord Pannick, on Monday because of the financial privilege point, and for that reason I say today that, whatever else has been said, I find it inconceivable that the Minister in the other place should again have called it financial privilege.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, the practice of the House of Commons, as I understand it, is that when an amendment is called that involves financial privilege—in the opinion of the Speaker acting on the advice of the Clerks—this is intimated; and my understanding is that the Government would not be able to challenge that at all, just as we, as a matter of practice, do not challenge it either, although sometimes there have been occasions when some have felt there was a possible reason for challenge. However, as a matter of practice, we do not do that. It is open to the Government—notwithstanding the fact that financial privilege is involved—to invite the House of Commons to agree to an amendment that involves financial privilege. Then the Speaker has to certify in the Journal that a matter involving financial privilege has been passed by the House of Commons. The reason for that is that the House of Commons requires, generally speaking, a money resolution in respect of any expenditure involved in a Bill; and if a Bill involves expenditure, a money resolution has to be passed at some stage during the course of the Bill.

In this procedure, there is no room for a money resolution as such, because that happens earlier, but the signification made by the Speaker—in that situation where the House of Commons has decided, notwithstanding that financial privilege is involved, to agree to the amendment, in whole or in part—goes into the Journal in order to replace the need for a money resolution, and it of course authorises the Treasury to disperse money on the basis of that resolution of Parliament. That has nothing to do with the question of whether or not the amendment should be agreed, but, so far as concerns this House, if the resolution is based on financial privilege, the understanding has been—notwithstanding how difficult it might be on occasion for some of us to understand exactly how it arises—that we do not dispute that proposition.

[Lord Howarth of Newport]

Perhaps I may put it to the noble and learned Lord that while the exposition he has just given seems to be entirely correct, what is interesting—and this may not be a matter on which he personally would wish to comment, although I hope the Minister will do so—is why the Minister chose to emphasise at the outset of his speech that the amendment was subject to financial privilege. Of course it was. The Speaker made it clear to the House that that was the case. However, the Government could have asked the House to waive financial privilege and chose not to do so. That seems curious in an instance where nobody has been able to identify the expenditure implications of the particular resolution. That is what is perplexing us. Some of us have a larger worry about the practice that the Government have adopted of brandishing financial privilege at the outset of speeches in which they seek to refute or reject the advice of the House, because it tends to close down the argument. It leaves us wondering what the Government consider the useful role of this House to be.

[Lord Clinton-Davis]

Before it is too late, perhaps I may pay tribute to the noble Lord, Lord Pannick, to whom this House owes a tremendous debt. Throughout, he has argued passionately in favour of something he really believes in: legal aid. It is important that the basic principles that were laid down so long ago are observed. Like him, I believe passionately in the purposes of legal aid. Many people outside this House are indebted to what has been achieved.