Civil Legal Aid (Merits Criteria) Regulations 2012

Lord Mackay of Clashfern Excerpts

Monday 3rd December 2012 Lords Chamber

I have to accept that in the vast majority of cases legal aid will no longer be available after 1 April. However, many of the minority of cases that involve points of law are brought by disabled appellants and it has got to be common sense, and just, that they should receive some—some—legal advice. How can they be expected to know or understand the legal points that arise in their case? The Government agreed with that proposition in April; for some reason they do not now. Surely they should think again, and that is what I am asking them to do. In due course I will seek to move my amendment.

[Lord Mackay of Clashfern]

My Lords, I will speak in relation to both these matters; not in order of importance but in the order in which they were taken, so I will speak first to the amendment of the noble Lord, Lord Pannick.

As I understand it, what the noble Lord, Lord Pannick, finds difficult is Regulation 53(b), which requires that the director whose job it is to decide such matters has to be satisfied that,

“the individual has exhausted all administrative appeals and other alternative procedures”,

which are available to challenge the act, omission or other matter,

“before bringing a public law claim”.

That is not just judicial review; it is quite a wide area of law, including habeas corpus jurisdiction, as the noble Lord, Lord Pannick, mentioned. However, this is not the whole of this matter. It is interesting that it is Regulation 53, because I think that the original rule of the Supreme Court that brought in judicial review was Order 53. It is a strange coincidence, but not particularly important. What is important is that, apart from what I have just read, the beginning of Regulation 53 requires that,

“the Director must be satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) are met”.

So Regulation 39 has to be met before you come to this regulation at all.

The noble Lord, Lord Pannick, briefly referred to Regulation 39. It includes this provision at sub-paragraph (d), requiring that,

“the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution”.

I understood my noble friend Lord McNally to suggest that that only applied to a limited number of alternative procedures—but it says “all reasonable alternatives”. I cannot see how it is possible to have Regulation 39, with that provision in it, and Regulation 53(b), which requires that that regulation is accepted, and also adds this. The two seem to be contradictory. It is not just the point that the word “reasonable” is used in Regulation 39; it is incorporated into Regulation 53 at the beginning. It simply does not make sense. That is the short and long of it.

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[Lord Bach]

With the greatest of diffidence, I rise to try to explain the situation as I see it. The respect I have for the noble and learned Lord is well known. My understanding is that what the Government propose comes at the end of the First-tier Tribunal hearing. Therefore, leading up to the First-tier Tribunal, whether or not on a point of law, there would be no advice at all to the appellant. During the tribunal hearing there would be no advice to the appellant. Only if the appellant after the event decides to ask for facts and reasons and, after that, puts in a notice of appeal, will there be the slightest chance that he might get legal aid at that stage.

[Lord Mackay of Clashfern]

With great respect, the noble Lord’s own explanation shows that what happens is that the First-tier Tribunal makes a decision and that is one in a very large number of decisions. If somebody wants to make a representation against that decision, asking for a review, the tribunal can invite representations at that stage; if it does, the applicant, as long as he was the original appellant, can get legal aid. If, on the other hand, the tribunal decides, “We do not want representations, we know that we are right”, it goes ahead with the review and comes back to the same decision; because an application has not been opened with right of representations at that stage, the second branch of the regulation gives legal aid. That is how I understood it but I may be wrong.

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[Lord Beecham]

My noble friend is to be congratulated not only on bringing this amendment to the House but also on being elected Peer of the Year. At this rate he may turn into the Hilary Mantel of your Lordships’ House; she of course has won her second Man Booker prize, and it may be that next year my noble friend is awarded with his accolade again. I will speak briefly to his amendment before turning to that of the noble Lord, Lord Pannick.

The Opposition entirely support the case made by my noble friend, particularly because, embedded in the Government’s approach and reflected to some degree in today’s debate, there is some confusion between points of law and errors of law for the purpose of these regulations. The Citizens Advice briefing helpfully makes this distinction clear. It says:

“Furthermore in devising this whole policy Government appears to be confusing ‘points of law’ with ‘errors of law’. Whilst the majority of first tier welfare benefit appeals turn on ‘points of fact’ such as financial and other circumstances … many cases do raise significant legal issues over statutory interpretation (ie social security regulations), legal tests for disability”—

as referred to by the noble Baroness, Lady Doocey—

“or disputed application of … precedents etc. The tribunal making an error of law which may be subject to a right of appeal is a much narrower concept”.

We have to bear that distinction in mind when weighing the strength of the case made by my noble friend. It will be the very exceptional case, as the noble Baroness pointed out, that may qualify for that description of an error in law, which of course has to be self-certified by the tribunal itself—a peculiar process, one might think. We are certainly not in the position that the Minister mentioned in the debate in the House of Commons when he talked about 440,000 cases. That number is inconceivably large and, in my view, can be dismissed. Certainly, though, probably a good deal more than 650 cases could potentially arise if the definition were to deal with points of law. I hope that, bearing in mind the assurances given on the earlier occasion by the former Lord Chancellor, the House will support my noble friend’s amendment.

I also support the amendment moved by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Mackay, as I understand him. Indeed, there is a peculiar relationship between Regulation 53 and Regulation 39, but in my view it goes somewhat beyond the matter identified by the noble and learned Lord. In addition to the potential clash with Regulation 39(d), it strikes me that problems arise in relation to two earlier parts of that regulation, paragraphs (a) and (b). I remind noble Lords that all these matters have to be borne in mind when dealing with Regulation 53. Under Regulation 39(a) the director has to be,

“satisfied that the following criteria are met … the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case”.

That is a fairly open-ended requirement. Regulation 39(b) says that the director has to be satisfied that,

“the case is unsuitable for a conditional fee agreement”.

Suppose, though, that it was suitable for a conditional fee agreement; that of course does not necessarily mean that a conditional fee agreement is available. Suitability and availability are not the same thing. That reinforces the noble and learned Lord’s point that there is an inconsistency between Regulation 39 taken as a whole, not just in relation to Regulation 39(d), and Regulation 53. I hope that noble Lords will be convinced by that element.

There is a further matter that I need to touch on. The thrust of the Government’s proposals is to reduce the reliance on judicial review. We have to be concerned about this in view of recent pronouncements about the Government’s desire to reduce substantially the number of cases that can be advanced by that method, which is of course a principal method of holding the Executive to account. This is just one potential example, but I think that noble Lords will want to pay particular attention to it, having regard to the category of people who will be most affected by it. We should not lose sight of the fact that this may be part of a process of restricting access to judicial review that will go well beyond this particular category. In my submission, that is an additional reason for noble Lords to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern]

My Lords, am I right or wrong in thinking that any appellant who is unhappy with the decision of the First-tier Tribunal can ask it to review the decision?

[Lord Beecham]

Assuming that the appellant has the knowledge of that procedure, he might ask it to review its decision, but the review will amount to nothing unless the tribunal convicts itself, as it were, of an error in law. If it makes that mea culpa then under the Government’s amendment there is a potential for legal aid to be granted, but not otherwise.