Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

[Lord Thomas of Gresford]

Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.

[Lord Beecham]

I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.

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Moved by

[Lord Thomas of Gresford]

22: Schedule 1, page 125, line 5, at end insert—
“Social entitlement(1) Civil legal services and advocacy in appeals from the Social Entitlement Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court where the relevant court or tribunal certifies that—
(a) the appeal raises a complex issue of law or of fact (in which case the certificate must identify the issue),(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.”

[Lord Thomas of Gresford]

My Lords, Amendment 22 and Amendment 78 are concerned with appeals in social welfare and immigration cases. I am grateful to the noble Lord, Lord Bach, for paving the way to this earlier today. They seek to secure legal aid for appeals in welfare cases from the Social Entitlement Chamber and the Immigration Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court. By Clause 9 of the Bill, civil legal services other than Part 1 services are made available where the Director of Legal Aid Casework has made an exceptional case determination and, of course, an individual’s means qualify. The tests of exceptionality as we have known them in the law, and as have previously been applied by the Legal Services Commission and indeed by the then Minister, Lord Bach, in person as he did from time to time, are no longer relevant. That is because an exceptional case determination is precisely defined in Clause 9(3). Exceptionality is directly linked to any case where the failure to provide civil legal services would be a breach of the European covenant rights—EU rights—or where there is a risk of such a breach.

I seek to persuade your Lordships that there can be no clearer case of a breach, or at least the risk of a breach of Article 6 rights, than in appeals from the First-tier Tribunal to the Upper Tribunal or beyond if the litigant in person is opposed at the hearing by a government legal team of counsel and/or solicitors. This is particularly so since appeals are permitted only on a point of law and the litigant in person will be required to argue legal points for which he is by no means qualified. No appeal can be brought to the Upper Tribunal without the leave of the First-tier Tribunal, nor can appeals be brought to the Court of Appeal or the Supreme Court without leave. At each stage, leave has to be obtained. The mechanism is already in place for the judges who tried the case and heard all the facts to determine not just whether there is sufficient merit in the appeal on a point of law to go forward but to determine whether the issues are complex. Who better to judge whether a matter is complex than the judge who has tried the case? It is a small step to amend the rules to require them to certify whether or not the issues are complex.

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[Lord Wallace of Tankerness]

My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.

My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.

[Lord Thomas of Gresford]

Is that on the basis of an assessment of how many cases a judge would declare complex? I propose a filter for these cases; only those that are complex should go there.

[Lord Wallace of Tankerness]

That is the point I was about to make. It is possibly based on the majority of cases currently going to the Upper Tribunal. As my noble friend rightly points out, we perhaps do not know how many cases would be certified as complex. That is an unknown unknown. I think my noble friend gets the point I am trying to make: we do not know that.

My noble friend makes an important point that the complexity of those cases arising out of the social entitlement chamber would be one factor that could engage Article 6 and lead into the exceptional funding in Clause 9. That exceptional funding is intended to take account of Article 6 issues. As he indicated in moving his amendment, that would require taking into consideration the complexity of each individual case considered under Clause 9. He indicated that that could lead to a waste of resources and he asked what was lost were a judge to make the determination rather than a legal aid director. One possible response is that the director’s determination under Clause 9 is whether the case is such that the refusal of legal aid would be a breach. Clearly, each case would have to be determined on its individual merits.

We move on to bringing into scope cases which are certified to be of significant wider public interest. Under the current legal aid scheme, there is a rule that allows any excluded case other than a business case to be brought back into scope if it is of significant wider public interest. As I have indicated previously, the Government do not intend to include such a rule in the civil legal aid scheme created by the Bill.

My noble friend also made a point that I wish to reflect on. I think he referred to the Cart case in terms of judicial review. If one were to go down that route, where legal aid would be available, the balance would be in terms of costs as opposed to what he proposes, where there would be a possibility of certification of a case in the significant wider public interest.

Without being in a position to make any commitment as to the outcome, on the point that the noble Lord raised—as well as the point that he made that not all cases would necessarily qualify that went to the Upper Tribunal or beyond—I have discussed the issue with my noble friend Lord McNally and we would be willing to consider this further if the noble Lord will withdraw the amendment. However, I make it clear that I cannot guarantee that he will necessarily ultimately get the result that he wants. But he has raised matters that I want to reflect on and pursue further. I include the noble Lord, Lord Bach, in that. There are important legal issues at stake.

[Lord Thomas of Gresford]

I am most grateful to my noble friend for that reply. I ask him to add this point to his deliberation. If the judge who has tried the case and knows all the facts and circumstances certifies that it is complex, the case can go forward on its merits to the Upper Tribunal under what I am suggesting. If the judicial review procedure is followed, an application for leave will be made to the Upper Tribunal, so that whoever sits in the Upper Tribunal has to determine first of all whether leave can be granted in this particular case. It happens in criminal courts all the time that cases go forward on the basis of a certificate from the judge, from the Court of Appeal to the Supreme Court in particular. The particular judge is in so much better a position to decide whether this is a case that merits a certificate and whether the merits of the case are such that it should be given permission to go up. That is a far better situation than the one whereby the defeated applicant applies for leave for judicial review to a judge in the Upper Tribunal who has to spend his time considering the papers put in front of him. If the noble and learned Lord has any contact with members of the judiciary, he will know that one thing that they do not like doing is to wade through piles of applications for judicial review from scratch to try to determine whether there is a point worth arguing in the administrative court. So there is a practical side to it that I suggest he should take into consideration. I am grateful to him for his response and on that basis hope to have further discussion and, perhaps, return to the matter on Third Reading. I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

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Moved by

[Lord Thomas of Gresford]

47: Schedule 1, page 135, line 31, at end insert—
“Best interests of patients16A Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment.
Exclusions16B Paragraph 16A is subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions16C For the purposes of this paragraph “medical treatment” has the same meaning as in the Mental Health Act 1983.”

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[Lord Thomas of Gresford]

My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.

[Lord Beecham]

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

[Lord McNally]

My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.

However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others—in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant’s income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.

On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.

In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.

[Lord Thomas of Gresford]

My Lords, I am grateful to noble Lords who have spoken in support of the amendment. I am indeed disappointed by the Minister’s response, but it seems to me that he has accepted that applications of this sort fall within paragraph 5, and that is on the record. I am disappointed that means tests come into a case of this nature; it seems to me utterly heartless that it should be like that, particularly when the noble and learned Baroness, Lady Butler-Sloss, has pointed out how difficult those cases are. They are heart-rending for the people concerned and for the judge who has to try such issues, not to mention all those who are involved in presenting evidence.

I shall not press the matter, but I register my view that the Government ought to have taken a more generous view on this small number of cases.

Amendment 47 withdrawn.