Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Thomas of Gresford]

93: Clause 9, page 6, line 20, at end insert “, or
“(c) that it is in the interest of justice generally”

[Lord Thomas of Gresford]

My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty—what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word “exceptional” is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some exceptional peculiarity. However, that cannot be the meaning of what we see in Clause 9, because an exceptional case determination is defined in subsection (3), which says:

“For the purposes of subsection (2), an exceptional case determination is a determination”,

and then describes what type of determination it is: first,

“that it is necessary to make the services available … because failure to do so would be a breach of … the individual’s Convention rights … or … enforceable EU rights, or”,

secondly,

“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.

That is it; that is what exceptional case determination is.

My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.

The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,

“that it is in the interest of justice generally”.

I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.

[Lord Avebury]

My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister’s letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord, Lord Woolf, say that a sizeable proportion of the Supreme Court’s diet was immigration cases. It will be interesting to hear from my noble and learned friend how the person who starts off as a litigant in person and gets part way up the ladder towards the Supreme Court would be able to gain representation when it became appreciated that the case was one of extreme legal complexity; or is this litigant supposed to go all the way up to the Supreme Court dealing with the case himself?

The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals—representation at which is restricted to the highest level, level 3—removals and deportations, applications outside the rules, and illegal entrants and overstayers.

Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation.

I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals.

My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases.

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[Lord Wallace of Tankerness]

The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.

[Lord Thomas of Gresford]

My Lords, one of the comforting sayings at the Bar, which I have found over 50 years to be absolutely true, is that when one door shuts another opens. It seems to me that, if he has heard of that saying north of the border, the noble and learned Lord will be aware that he has set out in his reply the basis of innumerable applications for judicial review of the decisions made by the director of legal aid services. It is impossible for there not to be a challenge to the statement made by the noble and learned Lord because almost anything can be brought within the ECHR rules, generally speaking, if you really try. We have heard reference to Articles 2, 6, 7, 8 and 14 tonight, which gives us five articles to play with.

I can assure the noble and learned Lord that the legal profession will look forward to testing his description and the ambit of the clause for a considerable period—case after case. It would be so much simpler if a broad discretion were given to the director of legal aid services, coupled with guidance that we could look at, in order that there would be some ambit to it. If the formulation of the noble and learned Lord, Lord Mackay, which was found to be so seductive last time, were adopted with guidance, that could prevent an awful lot of future litigation. With that very pleasant prospect in mind, I beg leave to withdraw my amendment.

Amendment 93 withdrawn.

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Moved by

[Lord Thomas of Gresford]

105A: Clause 20, page 15, line 14, at end insert—
“( ) For the purposes of subsection (1), “financial resources” shall include all the realisable property of the individual subject to a restraint order under section 41 of the Proceeds of Crime Act 2002 (restraint orders).
( ) The Proceeds of Crime Act 2002 is amended as follows.
( ) In section 41, omit subsections (4) and (5) and substitute—
“(4)(a) A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court, whether or not they relate to an offence mentioned in Section 40(2) or (3), subject to conditions—(i) an application for the release of such expenses shall be made by the alleged offender to the Court where the offence for which they are required is to be tried,(ii) notice shall be given of the application to the prosecutor or the Director, (iii) the application shall be supported by a costs budget verified by the solicitor to the alleged offender,(iv) the budget shall be calculated on the basis of current legal aid rates,(b) The Court shall not make an order prejudicial to a co-defendant.(5) The Court shall supervise the course of an order made under subsection (4) above and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender.””

[Lord Thomas of Gresford]

My Lords, Amendment 105A is in substitution for Amendment 105, which was drafted in identical terms to the amendment that I moved in Committee. As your Lordships will recall, my concern is that a person who has had his assets frozen should have those assets counted as financial resources when his application for legal aid is considered. At this time of night I do not think that a large exposition of that concept is needed, but I point to the differences between this amendment and the amendment moved in Committee. It was suggested by the Minister that you cannot easily unfreeze the assets of a person who is a criminal. I decided that I would do my best to show how simply it could be done by including in the Bill the conditions that could be applied. Amendment 105A states:

“A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court”—

I am not referring to the magistrates’ court—whether or not they relate to the offence for which the person has been arrested, subject to certain conditions. Those conditions are an application to be made to the court,

“where the offence for which they are required is to be tried”.

Further,

“notice shall be given of the application to the prosecutor or the Director”—

of Public Prosecutions—

“the application shall be supported by a costs budget verified by the solicitor to the alleged offender”.

Further,

“the budget shall be calculated on the basis of current legal aid rates”.

We are not suggesting that frozen assets should be released so that a locked-up defendant’s lawyer can drive around in a Rolls-Royce. He should receive remuneration as if it was a legal aid case but it would not come out of public funds—it would come out of the restrained assets. If such an order were made, it is very important that it should not be prejudicial to a co-defendant. One would not wish to see a defendant gaining an advantage by employing the leading Silk in the field of fraud in which he may have been engaged whereas his co-defendant was not able to do so.

Finally, the amendment states:

“The court shall supervise the course of an order … and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender”.

It seems to me that this is a straightforward, simple code that could be introduced to permit the frozen assets of an alleged offender to be unfrozen for the purposes of his defence. I hope that the Government will accept this or something like it. I beg to move.

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[Lord Thomas of Gresford]

My Lords, I am very grateful to my noble friend for saying that, and I am pleased that there are investigations. That is nothing to do with me but perhaps more to do with a person who was named in the Evening Standard the week before last as having received £5 million in legal aid. When one considers the sort of concessions that we and certainly the Opposition have been looking for for civil legal aid, providing £5 million to one person in a criminal case, when he is living in his wife’s seven-bedroom Mayfair mansion, surely stimulates the Ministry of Justice far more than anything that I might say. I look forward to the work that the noble Lord referred to and, for the moment, I beg leave to withdraw the amendment.

Amendment 105A withdrawn.

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Moved by

[Lord Thomas of Gresford]

108: Clause 22, page 17, line 41, at end insert “save that an individual shall not be required to pay a percentage of the damages he receives for the purposes of a supplementary legal aid scheme”

[Lord Thomas of Gresford]

My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.

So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.

The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.

The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.

Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.

[Lord Beecham]

My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.

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[Lord McNally]

Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.

As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.

[Lord Thomas of Gresford]

It is negative in the Bill. My amendment would make it affirmative.

[Lord McNally]

It will remain negative.

[Lord Thomas of Gresford]

That was a quick decision, if I may respectfully say so.

[Lord McNally]

The noble Lord did say that we were allowed to change our mind.

The power at subsection (3) is not new. Section 10(2)(c) of the Access to Justice Act 1999 explicitly allows for regulations to provide that a legally aided person can make a payment exceeding the cost of the services received. When we consulted on the legal aid reforms, we specifically consulted on introducing such a supplementary legal aid scheme.

As well as creating an additional source of funding for civil legal aid, the supplementary legal aid scheme will address the interrelationship between legal aid and the proposed reforms to the costs of civil litigation put forward by Lord Justice Jackson, which are reflected in Part 2 of the Bill. We want to ensure that as far possible the recovery level of damages by the supplementary legal aid scheme complements the Jackson reforms so that conditional fee agreements are no less attractive than legal aid. The recovery level of 25 per cent of all damages, other than those for future care and loss, is therefore based on the success fee cap for a conditional fee agreement in a personal injury case.

Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages, such as damages for pain and suffering and loss of amenity in tort cases. This will help claimants to pay their conditional fee agreement success fee or a 25 per cent portion of the relevant damages, if legally aided.

There has been a suggestion that it is unfair for successful claimants to be asked to help to underwrite the cost of the legal aid scheme in the way proposed. We do not see it as unfair. A claimant who wishes to proceed in a civil action with the aid of public funding is asking the taxpayer to take a risk on his or her behalf. Where that risk bears fruit in the form of what may be a very substantial sum of money, it is perfectly reasonable for a share of that to go back into the public pot so that the continued taking of such risks can more easily be sustained.

In sum, the power to make a supplementary legal aid scheme has now been sought by successive Governments. It has previously been approved by Parliament. Financial constraints are now such that we believe that it would be wrong not to exercise it in the way that we have clearly proposed and consulted on. Omitting to do so would also be out of step with the wider reforms to civil litigation that we are making. In light of my explanation, I hope that the noble Lord will agree to withdraw the amendment.

I now turn to Amendment 130, which would make any regulations made under Clause 22 subject to the affirmative resolution procedure, necessitating a debate and approval of a resolution by both Houses before the regulations could be made. We believe that this amendment is specifically related to Clause 22(3), although it goes much wider. As I have explained, we intend to use the power in Clause 22(3) to make regulations to establish a supplementary legal aid scheme. We believe that this amendment is aimed at ensuring that the details of the supplementary legal aid scheme are subject to the affirmative resolution procedure. An equivalent regulation-making power is contained at Section 10(2)(c) of the Access to Justice Act 1999. That power is subject to the negative resolution procedure. Our starting point is therefore, why should that change?

I am aware that there has been some suggestion that the Government have not been sufficiently clear about their intentions with regard to the use to which they intend to put the power in Clause 22(3). Nothing could be further from the truth. The proposal to introduce a supplementary legal aid scheme was clearly stated in the,

“Summary of the legal aid reform programme”,

contained in Reform of Legal Aid in England and Wales: The Government Response. That paper also contained a five-page annex explaining the proposal in the light of the response to the preceding consultation.

Paragraph 168 of the Explanatory Notes to the Bill also made our intended use of the Clause 22(3) power perfectly clear. Both Houses have now had an opportunity to debate the clause in the light of explanations that we have given. Clause 22(3) was specifically debated both in Committee in the other place and in Committee in your Lordships’ House. We believe that all that, combined with the negative resolution procedure in respect of the regulations, allows adequate public and parliamentary scrutiny in relation to the supplementary legal aid scheme.

The Delegated Powers Committee of the House considered the delegated powers of this Bill and did not comment on the application of the negative resolution procedure in relation to Clause 22(3). The Government’s memorandum to the committee explicitly highlighted our intended use of Clause 22(3). This amendment is therefore unnecessary.

I should also point out that the amendment goes much wider than just Clause 22(3) and would require the affirmative resolution procedure for any regulations under Clause 22. That would be undesirable and disproportionate. The powers under Clause 22 are those that will be used to set out the detailed rules regarding payment of contributions and case costs in respect of both criminal and civil legal aid. The negative resolution procedure is clearly the most appropriate for the type of highly detailed and technical provisions envisaged here, which will require variation from time to time. In those circumstances, I invite my noble friend to withdraw his amendment. I regret the confusion in my note reading halfway through that explanation.

[Lord Thomas of Gresford]

I think it was Champerty rather than maintenance where a third party takes a chunk of the damages that a litigant obtains in court. It is curious how far we have come to defeat these very ancient principles of English law. You can see the Magna Carta barons around the Chamber looking down on us; you can see them trembling as they listen to my noble friend putting forward this proposition. It is true that it was in the Access to Justice Act, but I do not believe that it was ever brought into force. It is also true that it was mentioned in the consultation document, which I read. In a document of some 150 pages, it covered one-third of a page; one paragraph related to it. It certainly was not highlighted either in the House of Commons or in this House that there should be such a deduction from the damages that are obtained by a legally aided person. I regret that.

A supplementary legal aid scheme could have been an alternative to support for conditional fee agreements—an argument that was made a long time ago—and it is true that a supplementary legal aid scheme has been adopted successfully in Hong Kong for people who do not qualify for legal aid. However, to have it in addition to the other provisions of the Bill is regrettable. For the moment—well, for all time—I beg leave to withdraw the amendment.

Amendment 108 withdrawn.