Legal Aid, Sentencing and Punishment of Offenders Bill

Nigel Evans Excerpts

Tuesday 17th April 2012 Commons Chamber

Consideration of Lords amendments

[Mr Deputy Speaker (Mr Nigel Evans)]

I must draw the House’s attention to the fact that financial privilege is involved in Lords amendments 1, 2, 6, 9, 24, 100, 104, 168 to 173, 176, 178, 181 to 187, 195, 197, 198, 203, 207, 210, 212, 215, 216, 220, 221, 228, 229, 231, 233 to 240, 243 and 244. If the House agrees to any of these amendments, I shall ensure that the appropriate entry is made in the Journal.

Clause 1

Lord Chancellor’s functions

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I beg to move, That this House disagrees with Lords amendment 1.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Lords amendments 3 and 4, Government motions to disagree, and Government amendments (a) and (b) in lieu.

Lords amendment 5.

Lords amendment 24, and Government motion to disagree.

[Mr Djanogly]

Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. Notwithstanding that, the House now has the opportunity to debate the substance and effect of the amendments, and shortly I will state the Government’s full reasons for rejecting them. Before I start, I remind the House of the statement that I made on Report on 31 October 2011 relating to my declaration of interests. It can be found at column 626 of Hansard, and I confirm today that it remains accurate. I ask the House to agree to the Government amendments in lieu of Lords amendments 3 and 4, which relate to the director of legal aid casework.

I turn to the Lords amendments. Access to justice is of fundamental importance to our legal system and to this Government, but our legal aid system is by any measure extremely expensive and sometimes prone to aggravating disputes unnecessarily by pushing them into the courtroom. The question for the Government has never been whether to reform it but how, and our approach is one with a principled basis of focusing scarce resources on the most urgent and serious cases while seeking a broader shift to earlier resolution of disputes. We have always been happy to accept amendments that deliver on those principles, so it should come as no surprise that the Bill is much revised. The Government have listened and made significant concessions, and I am grateful to the other place for its concern to improve the Bill.

In another place, Lords amendment 1, tabled by Lord Pannick, was said to identify the aims of the legal aid system in our society. It would place a duty on the Lord Chancellor, reflecting the provision in section 4(1) of the Access to Justice Act 1999, to secure within the resources made available and in accordance with part 1 of the Bill that individuals have access to legal services that meet their needs effectively. However, clause 1(1) already sets out a clear duty on the Lord Chancellor to ensure that legal aid is made available in accordance with part 1 of the Bill, so the Government are concerned that the amendment replicates what is already in place.

Worse than mere duplication, technical problems with the amendment risk muddying the waters, creating legal uncertainty and undermining the Bill’s clear purpose. Unlike the clear duty in clause 1(1), which relates to legal aid made available under part 1 of the Bill, with legal aid being defined in clause 1(2), Lords amendment 1 would impose a duty in relation to legal services. Despite the purported qualifications in the words in brackets, it can be read as imposing a wider duty on the Lord Chancellor than that intended under the Bill, in that it risks imposing a duty on him to fund legal services beyond the realm of legal aid provision.

We believe that there are potential additional costs attached to the amendment, which would create uncertainty. It runs contrary to the policy intention of creating certainty through the unambiguous description of services in schedule 1 and the clearly defined circumstances in which exceptional funding is available. Both the uncertainty that would be created and the possible costs are undesirable outcomes.

The problem with the amendment is that it conflates the two important but separate principles of access to justice and the provision of publicly funded legal advice. It could be understood in the context of the 1999 Act, which, because it was drafted on an exclusionary basis, specifies what services cannot be funded under civil legal aid but leaves rather vague exactly what the Lord Chancellor is responsible for funding. However, the Bill is carefully drafted on an inclusionary basis, which means that it is explicitly clear about what services can be funded, thereby representing Parliament’s view on services that should be provided under legal aid to meet people’s needs.

Lords amendment 1 risks providing the basis for myriad new legal challenges seeking to widen the scope of the Bill. The central purpose of our legal aid reforms is targeting resources where they really matter, not providing work for lawyers. We cannot accept an amendment that might prompt endless legal dispute and judicial review.

Lords amendments 3 and 4, which were tabled by Lord Pannick, and the Government’s Lords amendment 5 all concern the director of legal aid casework. Lords amendments 3 and 4 are born out of concern that the director’s decisions will be subject to political interference from Ministers. I reassure the House that the Government absolutely agree with Members of the other place that the Lord Chancellor should have absolutely no involvement in a decision about legal aid funding in an individual case. However, we ask the House to reject Lords amendments 3 and 4, because they would have the unwelcome effect of preventing the director from being appointed as a civil servant.

I must remind the House that we are abolishing the Legal Services Commission to improve the administration of legal aid, not to create greater fragmentation of responsibility and accountability.

Clause 4 provides protection to the director by creating, in clause 4(4), a statutory bar on the Lord Chancellor’s involvement in funding decisions by the director in individual cases. The Lord Chancellor may not give directions or guidance to the director about the carrying out of the director’s functions in relation to an individual case. In addition to that protection, the Bill imposes a duty on the Lord Chancellor to publish any guidance and directions that he issues to the director.

Lords amendment 5, which is a Government amendment, goes further by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. That annual report will be laid before Parliament and published. We consider that further offer of transparency to be an important safeguard.

I am aware that the question of directorial independence was one that exercised the other place considerably. It is because we agree that that is a vital issue that we are happy to put the matter beyond doubt. That is why I am asking the House to agree to the Government amendment in lieu of Lords amendments 3 and 4. That will reinforce the protections already set out in clause 4(4) by requiring the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under clause 4(3) in relation to an individual case. That provides additional assurance on the director’s independence without compromising common-sense administrative arrangements designed to improve control and accountability.

Finally, Lords amendment 24 concerns the provision of advice over the telephone, on which I am afraid I cannot agree with many of the sentiments of the other place. The effect of amendment 24 would be to weaken a key measure to modernise the system and bring it up to date. The aim of the telephone gateway is to route access to legal aid, in the first instance, by the phone. That is not only much more efficient, enabling calls to be properly triaged, but simpler to access and generally of higher quality.

--- Later in debate ---

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I beg to move, That this House disagrees with Lords amendment 2.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Lords amendments 189 to 191.

Lords amendment 192, Government motion to disagree, and Government amendments (a) to (c) in lieu.

Lords amendment 193.

Lords amendments 194 and 196, and Government motions to disagree.

Lords amendments 217 to 220 and 243.

Lords amendment 168 and Government motion to disagree.

Lords amendment 169 and 240, Government motions to disagree, Government amendments (a) and (b) in lieu, and amendment (i) to Government amendment (a).

Lords amendments 170 to 172, and Government motions to disagree.

Lords amendments 177 to 181, and 206 to 216.

[Mr Clarke]

Lords amendment 2 impinges on the financial privileges of the House. I ask the House to disagree to the amendment and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so—and so too with amendments 168, 170 and 171. In addressing the very wide selection that you have just announced, Mr Deputy Speaker, I shall begin by looking at the principles that the Government are adopting on the various amendments and the reform as a whole, and at what principles we are inviting the House to adopt.

The scope of legal aid goes to the heart of our attempts to reform and improve the justice system, because targeting funding where it really counts is fundamental, first to the savings the Government are having to try to make in this area as in any other. There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive. I shall not dwell on this issue but it is bound to recur during our debates. Even after our reforms have been carried, if Parliament eventually approves the Bill and it becomes an Act as we intend, we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population. In no other democratic jurisdiction would it be possible to get up and argue seriously that the taxpayer should spend money on the scale that we do on legal representation and advice.

The changes to the scope of legal aid that we are proposing are also part of a broader shift. We are trying to reduce the amount of unnecessarily adversarial litigation. The very broad provision of legal aid has encouraged people to bring their problems before the courts, but sometimes their basic problem is not a legal one and the best way of resolving the dispute or tackling the problem would be not to take a litigious approach. Such an approach imposes costs and does not always resolve problems. Before I move on from the tricky matter of cost let me say that with legal aid the cost is not just to the public purse and our Department. One has to think of the costs imposed on all the other people who are parties to litigation, such as businesses—small and medium-sized enterprises—and the national health service, as this selection includes clinical negligence claims. Everything we agree to do in relation to clinical negligence comes out of the budget that is otherwise available for public services. The growth of the clinical negligence industry is having an impact on national health services at the present time. There is also a cost to individuals, because for an ordinary citizen of ordinary means to be in the appalling situation of being engaged in litigation when the other party has legal aid is not an experience that most people would enjoy. We should bear all that in mind as the background to what we are doing.