Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Lester of Herne Hill Excerpts

Wednesday 7th May 2014 Lords Chamber

I regret the content of these new regulations and I regret that this detrimental change to justice is being implemented by secondary legislation. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, I am a member of the Joint Committee on Human Rights and we are very grateful to the noble Lord, Lord Pannick, for initiating this debate. Our report, to which he has referred, and his speech say everything that I think could be said to explain the firm hostility to these proposals not only across the legal profession but across the committees of both Houses and the wider public. This will not inhibit people from saying the same thing again but I do not intend to be one of those; instead, I want to say something slightly different.

One thing that the Joint Committee on Human Rights referred to as a result of what is happening is the,

“conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.

We expressed the view that,

“the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice”,

and so on.

During the passage of the Constitutional Reform Bill in 2005, I was one of those who supported the abolition of the old Lord Chancellor system and the creation of a new one in which a politician who was not a lawyer could become Lord Chancellor and Secretary of State for Justice. In my reforming enthusiasm, it seemed that that was a sensible thing to do. I deplored the conservatism of those who thought that this was ridiculous and that there was no reason why a non-lawyer—a lay person—could not be the Secretary of State for Justice.

I thought about my old boss Roy Jenkins, who was not a lawyer, and it seemed to me that he would have made an admirable Lord Chancellor because, although he was not a lawyer, he understood the rule of law. It was in his DNA—in his bloodstream. I could not imagine Lord Jenkins of Hillhead at any stage in his career becoming a populist Secretary of State for Justice who would forget about the importance of the independence of the judiciary, its role and the role of the independent legal profession, and the importance of judicial review. That was why, at that time, I supported the changes.

I am sorry to say that the previous Lord Chancellor, the right honourable Jack Straw, and the present Lord Chancellor have made me reconsider whether my enthusiasm was sensible. The previous Lord Chancellor, although a barrister, had managed in his period of office to behave in a way that I thought no Lord Chancellor would in flouting the judgment of the European Court of Human Rights and in going to Strasbourg to remonstrate with the president of that court about overreach and intrusion into the sovereignty of Parliament and so on. I do not believe that Lord Havers, Lord Hailsham, the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, or any of the traditional Lord Chancellors would have behaved in that way. That shows that you can be a lawyer and still not understand the rule of law. I know that what I have just said may be controversial on the Labour Benches but that is my view, having served him as an unpaid adviser for some 18 fruitless months.

However, the present Lord Chancellor is in a class of his own, because he is entirely miscast as Lord Chancellor. He would be perfectly cast in “House of Cards”. He would be an ideal person in that sort of role because he is a very intelligent, extremely charming, very effective politician. However, I am sorry to say that having seen him give evidence to the Joint Committee and generally, and seeing what he says in newspapers, I do not think he understands the rule of law. I do not think that you have to be a lawyer to do that but it might help if you have been part of that tradition. His legacy, I am sorry to say, is going to be bleak. People will look back on this period and the coalition Government and they will say with all the high statements made by both parties to the coalition about the rule of law—and for that matter the Opposition as well—extreme damage has been done to it.

The best judges of judicial review and costs are the judges. The judges invented judicial review. It was the judges who from 1976 developed the rules about judicial review. No Government would have done that. The judges did it because they realised that they should no longer be more executive than the Executive and that they needed to call Ministers and public bodies to account. It is one of the great glories of my life’s experience to have seen the flowering of judicial review. The present Minister of Justice thinks that judicial review is being abused by a lot of left-wing mischievous troublemakers who are running free and should somehow be curtailed. There is no basis for that allegation in my experience. If there were, you could be jolly sure that the judges themselves would criticise applicants who abused the process in that way. The Minister then goes on to suggest that this kind of change in legal aid will diminish mischievous and vexatious applications for judicial review.

All I can say about that is the best safeguards of the process are the judges and in this country, unlike some places, you have to get permission from the court before you can apply for judicial review. That is not an easy step. It often takes a great deal of skill to draft an application for judicial review. Lawyers have to be persuaded to do so, especially if they are not going to be reasonably paid for their services. Again and again judges will criticise applicants, as they will respondents, if they feel that they are misusing the process. I do not think that it is the business of a Minister to interfere with the discretion of judges in controlling the judicial review that they have developed.

I do not know any case, and certainly the present Lord Chancellor has not pointed to a single case, in which judges have failed to do their job properly by curbing the misuse of judicial review. I do not know a single example. He cannot give any; the Joint Committee on Human Rights asked him about it, and he was not able to provide any. Therefore it is an assault on the rule of law in a fundamental sense. It is not only about access to justice or equality of arms—that is to say, ensuring that the citizen and the state are on equal terms when it comes to judicial review. It is also about a complete lack of confidence in the ability of the judiciary to do its job properly. As a loyal supporter of the coalition, I feel very depressed at having to say what I have just said, but I am afraid that I have to say it, and I hope that whoever wins the next election chooses a Lord Chancellor and Minister of Justice who understands, as our Attorney-General now understands, what the rule of law implies. For all of those reasons I thoroughly support everything that the noble Lord, Lord Pannick, has said.

--- Later in debate ---

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

My Lords, I am grateful for the opportunity to accept the invitation to gird my loins and to respond to the noble Lord, Lord Pannick, and others—lawyers and non-lawyers alike—who have spoken in this debate this evening. As the noble Lord, Lord Pannick, said, many of us are veterans of the LASPO Bill, and I count myself as one. I declare an interest as until recently I was a barrister who practised in, among other areas, the field of judicial review, acting for both applicants and respondents, so I have some experience of this procedure. I should explain to the House the Government’s position on the regulations concerning the remuneration for legally aided judicial review permission applications that were laid before the House on 14 March and came into force on 22 April.

The debate has ranged far and wide this evening. We have had references to the separation of powers, a reminder of Montesquieu, a magisterial analysis of the developing role of the Secretary of State and the Lord Chancellor and a call to the reversion of the status quo ante, whereby the Lord Chancellor had a rather different and separate role. We have had a critique by the noble Lord, Lord Howarth, of the whipping system and of the machinery of government as a whole; an implied undertaking to repeal the Fixed-term Parliaments Act; a criticism of reforms of the national health system; and an attack on the Government as a whole. We have also had criticisms of the exceptional funding arrangements in the LASPO Bill and of the social welfare law provisions. To respond to all these issues would take several hours. I hope that noble Lords will understand if I do not do so but concentrate on the rather prosaic matter of these particular regulations.

During the course of the speeches of great quality which we have had this evening, a dispassionate observer would have thought that the Government were abolishing judicial review. Such a course would of course be of fundamental importance and would indeed fall foul of the many criticisms that have been ranged against it this evening. I entirely accept that judicial review is a critical check on unlawful action by public bodies and that it is wholly right that individuals should be able to access this mechanism. The many cases cited by the noble Baroness, Lady Stern, are examples of successful judicial reviews. The noble Baroness, Lady Campbell, quite rightly drew attention to the many actions that have been assisted by judicial review to right wrongs. Nothing about these modest regulations will do anything to erode that.

Civil legal aid for most judicial review cases will remain within the scope of the legal aid system. These regulations relate solely to the remuneration of legal aid providers and will ensure that limited legal aid funds are not used to remunerate weaker cases. The detail—prosaic though it is—does matter. It is a long-standing feature of our legal aid system that there should be limits on access to funding based on the strength of the case. To qualify for civil legal aid, cases must satisfy a merits—or prospects of success—test. Broadly speaking, a judicial review case must have a 50% or greater prospect of success at the final substantive hearing. However—there has not been a great deal of reference to this in the debate—noble Lords will be well aware that before any substantive judicial review hearing, the court must first give permission to proceed. Permission will be given if the court considers that a case is arguable and therefore merits full investigation. The permission stage therefore acts to filter out weaker cases at an early stage in the process.

Providers are well placed to assess whether or not the court is likely to grant permission before they issue an application. They will not be required to make a random guess before taking the risk to issue proceedings. That is because their assessment is undertaken following the pre-action stage of the process during which time providers gather the relevant information about the strength of the case. Noble Lords may be familiar with the protocol that applies in these cases. It is that information that enables them to make an assessment as to whether to issue proceedings. Under the policy, work to investigate the strength of the case and engage in pre-action correspondence would not be at risk. A case that has received legal aid and so has been assessed as having a 50% or greater prospect of success at the final hearing should be more than capable of satisfying the lower arguability threshold.

However, Legal Aid Agency data indicate that a significant number of legally aided cases—751 in 2012-13—apply for permission and fail, with potentially substantial sums of public money being expended. The commentary on civil procedure contained in the White Book, with which all lawyers will be wholly familiar, states as follows in rule 54.4.2, which deals with the permission application:

“The purpose of the requirement for permission is to eliminate, at an early stage, claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that there is a case fit for further consideration”.

That is a synthesis of the case law. It was quoted in the consultation, to which there has been some reference. The Government do not consider it fair or justified that limited taxpayers’ money should be used to fund such cases. The legal aid merits criteria provide an important control, but it is clear that they are insufficient by themselves to address the specific issue that we have identified in judicial review cases. These regulations will therefore introduce a further control by placing remuneration for the work on a judicial review at risk from the point at which proceedings are issued—that is, when an application for permission for judicial review is made to the courts. Providers will be paid for this work if the court gives permission.

Permission may be applied for but a case may of course also conclude prior to the court’s decision, a point made by a number of speakers. In those circumstances providers should seek to recover costs, either through agreement with the other party or by a costs order made by the court which orders the public body to pay the legal costs. Where this cannot be achieved, the regulations enable the provider to apply to the Legal Aid Agency for a discretionary payment. These regulations do not—as I think the Motion of the noble Lord, Lord Pannick, seems to suggest—make legal aid in judicial review cases solely dependent on the court granting permission to proceed.

This policy was the subject of extensive public consultation. The Government have listened carefully, and gone to lengths to modify the proposal to ensure that payment will continue to be made in meritorious cases. In response to concerns raised in the first consultation that strong cases will often conclude pre-permission, without costs being recoverable—a perfectly fair point made by a number of noble Lords—we moved to introduce a discretionary payment mechanism. In response to concerns that this discretion would be too inflexible—for example, that it could penalise providers who acted reasonably throughout but where new information subsequently came to light which altered the strength of the case—we modified the factors that the LAA would have regard to, and ensured that these would be non-exhaustive.

Remuneration will continue to be paid for the earlier stages of a case, where investigations are carried out into the prospects and strengths of a claim and pre-action correspondence is exchanged with the defendant. The regulations would not affect subsequent work in respect of the substantive hearing, once permission has been given. Nor would they place at risk any reasonable disbursements which arise in preparing the permission application, such as expert’s fees and court fees. Work relating to applications for interim relief will also not be at risk. Of course, providers can always discontinue the process, either following the pre-action stage where providers can decide not to issue proceedings on the basis of their assessment of the evidence, or after proceedings have been issued, where providers may seek to discontinue the case if they consider that the prospects of success have been materially altered.

The regulations only and specifically put at risk work on the permission application, in accordance with Part 54 of the Civil Procedure Rules 1998 or Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008, where an application has been issued. By way of example, this would include work on drafting the grounds of claim, and preparing the claim form or application for permission and the bundle of documents. I have been somewhat surprised by arguments that providers would be unclear what work would and would not be at risk. These are matters with which any legal aid provider who carries out litigation will be very familiar, for example for the purpose of preparing a statement of costs.

[Lord Lester of Herne Hill]

I am sorry to interrupt, given the lateness of the hour, but what my noble friend is saying perplexes me. Would he please look at Regulation 5A(b)? This deals with the situation where neither a refusal nor a granting of permission takes place, and the Lord Chancellor is then given discretion where he considers it is reasonable in the circumstances to pay remuneration, taking into account (i), (ii) and (iii). I will not embarrass the Minister by reading those out, because everyone would laugh if I did. But looking at (i), (ii) and (iii), and putting himself back in the days when he was a barrister appearing for applicants, how on earth could he reasonably predict the outcome, so far as costs are concerned, with those criteria?