Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Tuesday 20th December 2011 Lords Chamber

Moved by

[Lord Pannick]

1: Clause 1, page 1, line 5, leave out subsection (1) and insert—
“( ) The Lord Chancellor must secure (within the resources made available and in accordance with this Part) that individuals have access to legal services that effectively meet their needs.”

[Lord Pannick]

My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.

As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.

The amendment seeks to focus this Committee’s debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.

The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships’ Constitution Committee, of which I am a member.

I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,

“in accordance with this Part”.

I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.

[Lord Faulks]

My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

“made available in accordance with this Part”—

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.

I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

--- Later in debate ---

[Lord McNally]

As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.

[Lord Pannick]

My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.

I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.

[Lord Thomas of Gresford]

Perhaps the noble Lord would outline what is meant by,

“in accordance with this Part”.

[Lord Pannick]

I will come to the noble Lord's concern that the amendment does not go far enough. My point is that if the Government are not even prepared to recognise the principle that the Bill should seek to secure, within the resources available, individuals’ access to legal services that effectively meet their needs, why should the Committee support the detailed reductions in the scope of legal aid that we will come to debate?

[Lord Thomas of Gresford]

I do not think that the noble Lord grasped my point.

[Lord Pannick]

I will deal with the noble Lord’s point if he will be patient; I prefer to deal with it in the course of my remarks and not at this precise moment. The Minister said that the amendment was unnecessary. I say with respect that that ignores the need for a statement of constitutional principle to assist the Lord Chancellor, the director, the courts and the public. The Minister suggested that these matters were inherent in the role of the Lord Chancellor. What, then, is the objection to putting the statement in the Bill?

The Committee heard support for the amendment from all sides of the House, and I am grateful to all noble Lords who spoke. The only noble Lords who spoke against the amendment, apart from the Minister, were the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. Each was concerned that the amendment did not go far enough: that it was either anodyne or positively dangerous in cutting down on the possible provision of legal aid. I say to each of those noble Lords, and in particular to the noble Lord, Lord Thomas of Gresford, that his comments, with respect, ignore the provision that has been on the statute book since 1999: Section 4(1) of the Access to Justice Act 1999, the terms of which are echoed in this amendment. Under all Governments since 1999, that has been the state of the law, and Section 4(1) refers both to “the resources made available” and to provision,

“in accordance with this Part”,

so I cannot understand the objection to including those same phrases in Amendment 1.

[Lord Thomas of Gresford]

I do not think the noble Lord has grasped what I was saying. The amendment states,

“in accordance with this Part”,

but we have not determined what this part will cover. As the noble Lord realises, I have put down many amendments to Part 1 in an attempt to rejig what will be in scope and what will not. He is inviting the Committee to accept,

“in accordance with this Part”,

at the very outset before we have decided what is going to be in it.

[Lord Pannick]

With great respect to the noble Lord, I am inviting the Committee to accept that whatever the Bill is at the end of proceedings in this House and in Parliament as a whole, it is vital to have at the outset a statement of constitutional principle. This amendment is entirely without prejudice to all the amendments that we will be debating, considering, and perhaps voting on, many of which I support, but that is an entirely distinct question from the issue that we are now debating, which is the constitutional principle about what goes into the Bill. I was particularly grateful to the noble and learned Lord, Lord Goldsmith, for his support on this point, and I respectfully agree with what he said.

I am not going to test the opinion of the House today—I am going to take the advice of the noble Lord, Lord Newton of Braintree—but I very much hope that the Minister will be able without a vote to recognise that the opinion of the House is very strongly in favour of this amendment for all the reasons that have been expressed in Committee today. I am sure that the Minister will recognise that if there is no movement on this issue—an issue that I and many other noble Lords regard as absolutely fundamental—the House will return to this matter on Report, and it is clear, I suggest, that the Minister and the Government will face a substantial rebellion on their own Benches. For the present, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.