Committee (5th Day) (Continued)
82: Schedule 1, page 136, line 34, at end insert—
“( ) all areas of employment law not otherwise covered in this Schedule”
My Lords, I beg to move Amendment 82, in my name and that of my noble friend Lord Beecham. We come now to employment law, which, if the Government have their way, would be taken out of scope of legal aid altogether.
As a country we spend £4 million a year on legal aid for employment matters. That goes to help some 13,300 people at around £300 per head. Representation, as opposed to advice, is provided only to a handful of people a year, measured in the dozens not the thousands, and at pretty negligible cost. The kind of issues at stake will be well known to the Committee; they include unfair and wrongful dismissal, redundancy, employment contracts, discrimination, strike action, data protection and employee confidentiality, and wage issues.
These issues are of importance to the individual who has become a victim of an unlawful practice, but the Government consider them insufficiently important to merit public money—there seems no other interpretation of the Government’s intentions. Further, the Government consider that there are alternative sources of funding available for these cases. The Government’s consultation document says:
“We note that damages-based agreements are available in employment cases and that there are other sources of help available in this area of law. For example, some Trade Union members are usually entitled to legal assistance, the employer may be willing to engage in civil mediation (which is sometimes paid for by the employer), or, if the dispute concerns unfair dismissal or flexible working disputes, and there are no complex legal issues, the Advisory, Conciliation and Arbitration Service (ACAS) provides a free arbitration service. The presence of these alternatives is not determinative, but makes the provision of legal aid in these cases less likely to be justified”.
I cannot resist the comment that this must be one of the first times that a Conservative Minister and Secretary of State have plotted together to drive people into the arms of the trades unions, but so be it.
More seriously, we have to acknowledge on all sides that the majority of British workers are no longer members of trade unions. Damages-based agreements are not yet widely available and, we believe, open up the possibility of predatory behaviour by interested parties. In looking at the Solicitors Disciplinary Tribunal’s website, it does not take long to find evidence of pretty dodgy employment law claims management companies taking huge chunks of people’s damages—and that is before the lawyers get paid. If this part of the Bill goes through, the consequence will be that a large proportion of employees who have been dealt with unlawfully will end up representing themselves and will not have the benefit of legal advice.
When we asked government departments whether, when they are taken to a tribunal, they would typically be represented, hardly surprisingly, the answer was a unanimous yes. Similarly, private employers will often—although certainly not always—be represented at a tribunal by lawyers, whether they are solicitors or barristers. In practice, this means the creation of a highly prejudicial inequality of arms between employees and employers. That of course can be alleviated, as we all know, by high quality advice pre-tribunal, but even that cheap but successful option is no longer to be provided. We argue that in real terms it will mean an erosion in individual employees’ rights, especially those at the margin—for example, those on minimum wage and those who are most vulnerable. Those firms which choose to behave in the worst possible way by playing fast and loose with their employees’ rights may well be advantaged. It could be a bit of a race to the bottom, which is a cliché but precisely what happens when we start restricting access to justice. Good companies and employers that treat their employees with respect and that honour the law will find themselves at a competitive disadvantage to those who employ predatory practices. We do not believe that it is in anyone’s interests to encourage such a system.
I am afraid that it looks as though a concerted effort to curtail the rights of employees is taking place in our system. The law creates many of these rights because of the fundamental basic inequity of power between employer and employee. If these rights are to be taken away from employees gradually, that balance will shift. We have to make a decision as to whether that is a good or a bad thing. I am not talking about just the taking away of legal aid from scope; I am talking about the discussion that is going on at the moment about fees for employment tribunals, including the fee to begin a claim and the much larger, additional fee if the claim goes to hearing. I am talking about unfair dismissal and the qualifying period being doubled from one year to two years and, even though this may sound trivial, the payment of expenses to witnesses and claimants to attend an employment tribunal.
We on this side believe that such moves are unhealthy and a backward step in the very sensitive field of the employer/employee balance of power relationship. As my right honourable friend John Healey MP says today in an article in PoliticsHome, the emergence of the Trade Union Reform Campaign appears to be a rather extreme part of this process, but here we are discussing legal aid and whether it should remain in scope or be taken out of scope.
The cost of ensuring that people have good quality advice on employment rights and are able to exert those rights before a tribunal is, as I have said, £4 million a year. If those 13,000 people were not able to get some money or their job back, and if only a tenth of them went on JSA, that £4 million would immediately be spent just on that benefit. There are lots of examples of cases where employment advice has proved to be beneficial, and I want to mention a case referred to in the document London Advice Watch Report, which sets out the findings of a research project on the provision of social welfare law advice in London. The document was launched in the Palace of Westminster a couple of weeks ago, and among the speakers were my colleague Mr Andrew Slaughter MP and the noble Lord, Lord Phillips of Sudbury. The document cites the following case:
“A man who had worked at a large retail chain for eight years was fired for gross misconduct after making a mistake on the till which cost the shop a very small amount of money. Tower Hamlets Law Centre helped him claim unfair dismissal and won him his job back, along with compensation for lost earnings”.
The facts of that case are incredibly simple and straightforward, and I would bet that they are replicated many times in England and Wales, but it is just this sort of case where, if advice is not given, an employee who is unfairly sacked will go without a remedy. To use the phrase again, he will be without access to justice.
We think that this is £4 million that is well spent under our legal aid system, and has been for many years. That is why it is economic, humane, just and sensible to continue this provision and why we are putting forward this amendment to keep employment law in scope. I beg to move.
My noble friend has put his finger on the spot. The issues we are discussing are of prime importance, particularly for people who are not members of trade unions. I hope that they would be, but they are not, and we have to face up to the facts. We are talking about people who are particularly vulnerable, and I hope that the Liberal Democrats in this House are equally concerned about this issue. Employment law should enshrine issues which are vital to protect the lives of ordinary people. In that regard those who, unwisely or wisely, are not members of trade unions should be properly protected, but they are not. Indeed, they are going to be worse off if this particularly noxious proposal is carried.
I hope that the Minister will see sense, but I have seen little sign of that. He knows that I have a high regard for him, but I am surprised that he is part of the present coalition—I thought more highly of him than that. Vulnerable people need to be protected and I am concerned that that is far from being the case at present.
My Lords, I, too, support my noble friend’s amendment. The Government have not got their act together on this. We are told that these rights are being taken out of scope because there are other means of dealing with them. Well, the other means of dealing with them, of course, are via the arbitration system, but it is not very long ago since we debated in this House a set of proposals emanating from another wing of government, the Business Secretary, which were designed to weaken employment law on arbitration.
It was proposed that in future a dismissed employee should have to pay a fee before getting a case to an arbitration tribunal. And then, when the employee came before an arbitration tribunal, he would not face the kind of arbitration tribunal that we are used to for dismissal cases, with lay members from both sides of industry sitting on it—oh, no. In future, there would be no relatively friendly environment in which an individual could make a submission, perhaps without being legally represented, but a judge sitting on his own. In other words, it would be a much more legal system, and this legislation makes provision for no legal aid to be provided. That is totally unsatisfactory.
On the one hand, you have a Government saying, “Well, there are other means of dealing with the situation through a non-legal system”; on the other, they are doing everything possible to make it difficult for someone who has been dismissed unfairly, as they feel, to take their case to an arbitration tribunal instead of the law. This is absolutely unsatisfactory and I really do think that the Government have to re-examine their policies in this regard. It is totally unfair to individuals who believe that they are doing a good job of work, who become dismissed and who feel that they have a case, and there is nowhere for them to take it.
My Lords, I, too, support the amendment. It must make practical sense to put employment cases back into the scope of legal aid. Worryingly, we face the prospect of rising unemployment. We could see significantly rising unemployment if there were to be a disorderly collapse of the euro. Let us hope that that does not take place, but the interaction of global economic circumstances with the Government’s deliberate policies to reduce employee protection in the interests of liberalising the labour market could result in significant numbers of people becoming casualties. While the Government might argue that the overall economic process will be benign in the interests of this country, it is unquestionable that these circumstances may be malign in the interests of individuals.
In a process of economic adaptation, it is extremely important that, as a society, we take decent and proper care of those who may be the casualties of it. It must be a basic right that people should have legal aid to ensure that they are well advised and that, where necessary, they are represented and their cases can be well made in employment tribunals. What they are personally suffering is a product partly of events and partly of policy, and all of us have a responsibility to ensure that, in times of great economic difficulty, no more people suffer in these processes of change than is truly necessary.
If someone has a genuine right to bring a case against unfair dismissal or some other aspect of their employer’s treatment of them, and they are not supported to make that case, it leads to a sense of injustice. A sense of injustice pervading society in a context of economic stress and social strain cannot be something that the Government want.
If we look at the implications for individuals, again, surely Ministers do not want people to suffer unduly or to incur the costs to the public purse that one can foresee occurring. If someone loses their job, as my noble friend Lord Bach has pointed out, they are liable to become reliant on benefits and could be on the start of a slippery slope that leads to debt, homelessness, the destabilisation of family life, and physical and mental ill health, all of which carry costs to society and to the public purse which surely the Government would wish to avert.
I do not know whether it is the case—it has been suggested to me that it is—that the Government have received advice from those responsible for the conduct of the employment tribunals that it is a mistake to take employment cases out of the scope of legal aid. It would be helpful if the Minister could advise the House whether the Government’s policies have been endorsed or criticised by employment tribunals and whether they have been advised that it would be wiser not to take this course.
For all the reasons that noble Lords have put forward and those that I have suggested, I hope that the Government will accept the amendment. If they are unable to accept it today, I hope they will look carefully again at this area of reduction in legal aid before we come to Report.
My Lords, I, too, support the amendment so persuasively moved by the noble Lord, Lord Bach. I do so for three reasons. The first reason concerns the vital importance of employment rights. Few areas of the law are of such day-to-day practical importance to the individual as their rights under employment law. This is surely at least as important as environmental pollution rights, which are within scope under paragraph 37. I do not understand why equality is included in paragraph 38 and so is within scope, covering as it does some employment rights, including the important right not to be discriminated against on prohibited grounds, but not other equally important employment rights such as the right not to be unfairly dismissed.
The second reason—the noble Lord, Lord Bach, mentioned this—is the inevitable inequality in advice and representation between the employer, who almost always has legal advice and representation in the employment tribunal, and the employee. This will undoubtedly result in inequity and in decisions being given that are contrary not only to justice but to the law.
The third reason is the absolute inevitability that the lack of legal advice and representation will result in people wrongly losing their jobs and becoming reliant on state benefits. I hope that the Minister will address this point because the very limited financial savings that we are talking about are completely illusory for this reason.
My Lords, obviously, as the noble Lord, Lord Bach, said in his introduction, the purpose of the amendment is to make legally aided advice, assistance and representation available for all employment matters.
I have said from the Dispatch Box on one or two occasions in the context of these debates, and I have heard my noble friend Lord McNally say it—no doubt, he has also said it on many occasions when I have not been here—that we are faced with a need to prioritise resources. Clearly when individual issues are properly the subject for debate, it is always possible to make a case for that particular sphere of law or to bring that particular subject within scope. That has been evident from the contributions of noble Lords in this debate. Given the limited pot—it is not a bottomless pocket—my noble friends have had to address how we prioritise. As has been said on numerous occasions, we believed that the more important objective and priorities were those involving life, liberty or homelessness. As a result, we did not feel able to include within scope the employment law issues described by the noble Lord, Lord Bach, and others in the context of the amendment.
It is also important to remember that one of the other things that we have looked at and that has been addressed is where there are other opportunities for funding to be made available. That was touched on particularly by the noble Lord, Lord Bach, when he moved the amendment. Also, employment tribunals were designed, at least initially, to be simple. Their purpose is to enable parties to make or respond to a claim without the need for legal representation. While we recognise that clients find advice in the preparation of their case undoubtedly useful, when these tough choices had to be made we did not consider that this group of clients were generally likely to be in the category of particularly vulnerable people whom we have provided for in other parts of the Bill. We do not accept that the tribunal cannot be accessed or that justice cannot be obtained without legally aided advice.
In fairness, the noble Lord, Lord Bach, quoted from the Government’s consultation paper, in which we outlined other sources of advice such as the free helpline of the Advisory, Conciliation and Arbitration Service or the trade unions. I take the point made by the noble Lord, Lord Clinton-Davis, that numerous people are not in trade unions, but a considerable number of people are still covered. I seem to recall USDAW announcing earlier this week a very successful action that it had taken on behalf of its members in branches of Woolworths. It had managed to get claims. I am sure the noble Lord would agree that there is still an important and valid role for trade unions.
ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. In some cases, an employer may indeed be willing to engage in civil mediation. There is also help available from the pay and work rights helpline and the redundancy helpline, and the tribunal’s public inquiry line can provide factual information although, I accept, not legal advice. Again, in some cases, voluntary organisations or charities may be able to offer assistance.
A number of noble Lords mentioned other issues that are not immediately pertinent to the debate on legal aid. DBIS is still consulting, although it might not have even got to consultation yet. I will certainly make it my business to ensure that—
Many of the people we are talking about are inarticulate. In my view, they have to have some sort of professional advice, but advice on the spot that is legally articulated on their behalf. No one else will do it. What does the Minister say to that?
There is a distinction between advice that is preparatory to a tribunal and advice in representation. I will check this but at the moment what has been sought is in many respects advice preparatory to tribunal. The number of cases where there is actual representation is very small.
Will merely advising people and preparation be enough? Is it not vital that those in this position should be able to put their case to the tribunal? They cannot always do that by themselves, can they? They need professional advice.
My Lords, in many cases professional advice by representation is not actually available. I have already said that I do not for a moment deny that the advice that people get in the preparation of a case is valuable—of course it is—but we get back to the issue of looking at the competing priorities for funding from a limited pot. We have said that cases involving life, liberty and homelessness are more important priorities. We are looking, too, at circumstances in which the tribunal is itself intended to be a forum in which people could much more readily access such things informally, without the need for, or recourse to, lawyers. When I was a law student, the idea was still alive and fresh. That difficult choice was made against a background where there are other sources of advice available—I shall not list them again—and in the context of a tribunal that is intended to facilitate those who do not have representation. I do not shy away from it being a difficult choice, but it was made against other competing priorities.
I was about to take the point that the noble Lord, Lord Howarth, and the noble Baroness, Lady Turner, made. We have mentioned other proposals that have been on the airwaves. A different department is responsible, but I will ensure that these concerns are drawn to the attentions of BIS, and will respond to the more specific points when it is possible to draw them to the attention of the department whose responsibility they are. I think that I am right in saying that in some cases the consultation has not been completed.
I put another question to the Minister, although I am very grateful for his answer to that one. He himself suggested that we are no longer in a golden age, if ever we were, in which tribunals were easily accessible and user friendly. Will he say whether the department has received representations and advice from the employment tribunals on this matter and, if so, what it was? Did those tribunals endorse the removal of employment cases from the scope of legal aid?
I think that I asked whether someone could come to my aid and give an answer to that question. Perhaps if I talk slowly, that may be possible. Failing which, I may be able to intervene on the noble Lord, Lord Bach, if he responds to this amendment, or I will have to resort to writing to the noble Lord. Frankly, I do not know the answer, but I shall try to find it out for him.
While the Minister awaits advice, will he tell us about the processes that led to the drafting of the impact statement? A number of us have argued that there will be knock-on consequences for the public purse to the budgets of other departments and the wider economy from taking these cases out of scope. What examination have the Government made of the cost implications elsewhere for their own policies, which the Minister keeps telling us he is applying only under duress, to save money on the legal aid budget itself? The justification offered by Ministers for this is that it is essential to contribute to the reduction of the deficit, and this is how they are going to contribute to the reduction of the deficit. Many of us simply do not believe that the net effect of these policies will be to reduce the deficit—it will be to increase it. What calculations have the Government made about that?
As the noble Lord acknowledged, the question goes wider than this particular case. I remember dealing with or at least considering the matter in relation to an earlier amendment last week. While it is often said, I do not think that any substantive evidence has been given that the cost to the public purse will be greater as a result of these policies. Certainly, if part of the purpose is to ensure that the deficit was addressed, it would not make sense to rob Peter to pay Paul, or whichever way round it is. The Government’s view is that in the totality there is benefit and that this will make a significant contribution to the reduction of the deficit. I apologise to the noble Lord, but despite the extended debate I still do not have the answer to his question.
My Lords, since this seems to be a harry-the-Minister moment and I need to make up for yesterday, can I put a couple of questions to my noble and learned friend that I would like him to think about while he is waiting? First, in my considerable experience of tribunals generally, employment tribunals have always really thought that they should be courts. They behaved much more like courts than any other form of tribunal. Indeed, the Administrative Justice and Tribunals Council was so called because the employment tribunals insisted that they were not administrative justice and wanted “tribunals” in the title, reflecting their feeling of difference. Perhaps he could comment on that.
Secondly, and linking with this legal aid point, I picked up on the words of the noble Lord, Lord Pannick. I take the point about priorities, and I am not going to say that the other things which he mentioned are of lower priority than this. I had a constituency case, years ago, where somebody was up against one of the big banks, with QCs all over the place, so to me the question is: is it fair, just and right that people should be left without advice and assistance when they are up against that sort of might? I am not sure that the answer is yes.
My Lords, the lesson of this is to get an answer quickly so that you do not get other questions accumulating. I know that my noble friend has considerable experience from his time in dealing with tribunals. I cannot remember what his exact role was, but I know that he was very much involved and I remember meeting him when he had that role and I was in another Parliament. As I indicated, over the years it has perhaps become much more formalised but we should not lose sight of the fact that the intent of the tribunals system generally, no matter what they might want to call it, is to have a forum in which people can much more readily come and put their case forward than one with all the formality of the court. Indeed, as I indicated, that was part of the thinking as to why we are dealing with the tribunal system. Perhaps the necessity of it is, let us say, that there was a less compelling argument as to why these cases should therefore be brought within scope than would otherwise be the case.
My Lords, one of the points that I made was that the Government were intending to change the nature of the tribunals, by removing the lay people who sit on unfair dismissal cases and replacing them by a judge sitting alone. In other words, they are giving a much more legal feeling to the person who appears before them than when there were laypeople on tribunals. I am not a lawyer, but I have a lot of experience of tribunals. I sat for many years as a member of the arbitration commission, and so on, so I know quite a lot about the way in which laypeople operate on tribunals. It is certainly a much more friendly arrangement for an individual appearing before such a tribunal than if he or she appears before a judge sitting alone. That changes the nature of the tribunal and of the apparatus. I wanted to raise that with the Minister.
I accept that there is obviously a distinction between a tribunal and a more formal court setting. It was in the context of those proposals, which are not before us in legislation, that I indicated I would respond in more detail. Likewise, I will respond to the noble Lord, Lord Howarth. He asked a perfectly straightforward and fair question and I very much regret that I cannot give him an answer, but I will certainly do so and ensure that that response is circulated to other Members who have participated.
Would the Minister, between now and Report, consider the experience of someone such as myself, who was removed from employment because I wished to join the appropriate trade union? Under the Government’s proposals, preventing employees joining trade unions by threatening them will, in addition to the other disadvantages, provide an incentive for unscrupulous employers to try to stop their employees joining trade unions. In my case, it was a major company which recently has gone bust.
My Lords, it is always possible to speculate on what might happen in one case or another. To take the noble Baroness’s point, if it were a case where there were efforts to prevent her joining a trade union, that suggests that there was trade union involvement there, and one of the points that I have made is that trade unions have been a source of support over many years. However, it is difficult to look at the circumstances of one case without drawing conclusions that may be inappropriate. I simply observe that there are other forms and sources of advice that could be available in such circumstances, but perhaps not least from a trade union.
I conclude by making it clear that, as the noble Lord, Lord Pannick, highlighted, although legal aid has been removed for employment cases, it will be retained for judicial reviews and claims relating to contravention of the Employment Act 2010; discrimination claims are available there. That is consistent with what we had indicated we believed to be an important priority. In those circumstances, I ask the noble Lord to withdraw his amendment.
My Lords, the concept that employment tribunals are a cosy chat between an employee and his boss in front of a very receptive body of people is quite wrong these days. An impression of unfairness is created for the employee who is seeking his rights when he finds perhaps even a QC appearing on behalf of a wealthy employer. I have appeared many times for employers, sometimes for employees and sometimes on my own behalf.
The excuse, or the reasons, given by the Minister would be far more acceptable if he were to say, “Well, if a union is backing an employee, that is fair enough; they can pay for legal representation”. If he is there on his own, why not just have the boss—the person who did the sacking—in front of the tribunal, not lawyers who in many cases are overpaid when they are dealing with the individual appearing in front of them?
Before the Minister sits down completely, I have a question arising out of his emphasis on legal aid being available for equality claims. If I have understood this part correctly, paragraph 40 makes clear that legal aid will be available if your claim is in connection with a claim that is within scope. Is it right, therefore, that if I am a dismissed employee and I wish to be eligible for legal aid under the new regime, I should add a discrimination claim to my claim for unfair dismissal and then both of them would be within scope for legal aid? If that is correct, the consequence of excluding general employment claims from scope will simply be to encourage unmeritorious discrimination claims to be brought in order to ensure legal aid for unfair dismissal claims.
To pick up my noble friend Lord Thomas’s point, I do not think I ever suggested that tribunals were a cosy chat; indeed, I suggested that they were of a somewhat different nature from those of 30 or 40 years ago. However, we should not lose sight of the fact that employment tribunals were designed to be simple and accessible, and that the parties can make a response to a claim without the need for representation. Similarly, an employment tribunal and its chairman must, so far as is practical, ensure that the parties are on an equal footing—that is actually in the rules.
With regard to what the noble Lord, Lord Pannick, says, it is the case that where an employment claim involves both discrimination and non-discrimination matters, we will consider that under the rules that we put in place for connected matters under paragraph 40 of Part 1 of Schedule 1 to the Bill. Those rules will be set out in regulation but, as with any application that is within scope, this will not necessarily bring in these cases automatically. Of course there is still the merits test, albeit that it was a category that was in scope.
My Lords, I am very grateful to all noble Lords who have taken part in what I was going to describe as a short debate but is now a medium-sized one. None the less, it has been a passionate debate, with many strong views being expressed. I am grateful, too, to the Minister for answering the sometimes difficult questions that were rightly posed to him. I am particularly glad to thank the noble and learned Lord for acting as a recruiting sergeant for trade unions. Speaking as a member of a trade union, I think that that is a splendid thing to do from the government Front Bench. He is quite right; this is a strong argument for people to join trade unions and get the help that that brings. I know he was making a serious point.
On this occasion, the Government and even the noble and learned Lord are being rather naive about tribunals. It seems that the best justification for what the Government are doing is that because tribunals were designed to be informal, they are therefore informal and it is fine for individuals to represent themselves in person on a regular basis, even when the other side is represented by a QC or a lawyer of any kind. There is nothing that the tribunal can do to make it fair if that is the position. One thing that the state has done to make it fairer is to give individuals who do not have the benefit of trade union membership or any other resource—who do not have the money to pay for lawyers—some legal advice and, in occasional cases, representation at a tribunal, just to equalise the situation a little. I have no doubt that employment tribunal judges and the lay members who sit on tribunals welcome the fact that individuals have had advice or are, on occasions, represented. That makes their task that much easier than it is when there is complete inequality of arms.
I ask the Government why they are making a system that works pretty well at the moment more unfair and more likely to lead to injustice—this is true about a whole range of these issues but we are talking here about employment tribunals—for savings of some £4 million a year. That is if there will be savings, but I will come to that. Many arguments have been put forward against this change from all sides of the Committee this afternoon.
The question that I want to ask is: given that the only possible reason for doing this is to save some public money—we know, of course, that public money must be saved—is the Minister really satisfied that this will save any money at all? The obvious consequence of there being no legal aid is that bad cases will be taken forward by individuals, which will clog up the tribunal and slow it down because the individual will not have had advice or representation. Good cases will not be pursued, which is an attack on justice, or, if they are pursued, will take much longer to be heard because of the large number of bad cases that suddenly find themselves before the tribunal.
Take, for example, a person who feels aggrieved and is advised by a lawyer that he has no case or no chance of winning but still feels aggrieved. He therefore pursues his argument to the bitter end. That will take up much more time and money. Am I right?
As usual, my noble friend is right. The point is that many individuals who feel aggrieved, when they are advised—whether by a trade union lawyer or a private lawyer—that they do not have a case, will take that advice and not clog up the system in the manner that I describe. One suspects that there will be no savings at all for the poor employment tribunal itself. It will be caught with hopeless cases that will get nowhere, and claimants with good cases will have to wait a very long time to pursue their cases, if they even pursue them at all. It all seems totally unnecessary when the system that we have in England and Wales works well. I hope that I am not putting it too high when I say that I believe it is the envy of the world as far as employment law is concerned.
I hope that the Government will reconsider this aspect of the Bill between now and Report. I am minded to bring this matter back at Report for decision. However, for the moment, I beg leave to withdraw the amendment.
Amendment 82 withdrawn.
Amendment 82ZA, in substitution for Amendment 83, not moved.
Amendment 82ZB (in substitution for Amendment 84)
82ZB: Schedule 1, page 136, line 34, at end insert—
“( ) all areas of consumer law not otherwise covered in this Schedule”
My Lords, this amendment speaks to the question of consumer law and seeks to restore it to the scope from which it is removed by the Bill. Consumer law covers a multitude of cases but in particular contract law, consumer credit and professional negligence proceedings.
In 17th century terms, I view the noble and learned Lord as a Roundhead—or in view of his provenance, perhaps as a Covenanter—rather than as a Cavalier. However, I am afraid that “cavalier” is the only word that I can apply to the Government’s attitude to access to justice in this and other contexts. That attitude is well illustrated by the airy dismissal of the views of those whom they consulted on whether consumer law should be kept within scope. The Government carried out a consultation exercise and reported:
“Of those respondents who commented on this aspect of the proposals, almost all were opposed to removing these cases from scope”.
Two of the grounds that were raised are relevant for today’s purposes. The response stated that,
“some respondents argued that consumer cases should be retained, in particular professional negligence cases where negligence may have resulted in serious consequences for the client … in some professional negligence cases clients would need expert reports to prove negligence and without legal aid individuals would not be able to afford these”.
The Government concluded:
“Having considered the responses … we confirm our intention to remove consumer and general contract cases from the scope of legal aid. Whilst there are some difficult cases, in particular professional negligence cases, these are still essentially claims concerned primarily with recovering damages, and that means that we consider that their relative importance is generally low, compared, for example, with issues of safety and liberty”.
That is a classic case of an argument reductio ad absurdum. To say that life and liberty are more important than contract law or divorce is axiomatic: it does not advance the argument one whit. The Government also said, as we are so used to hearing in debates on this Bill:
“There are other sources of advice available in relation to consumer matters, for example, from Trading Standards and Consumer Direct”.
Here I ought to declare a non-pecuniary interest as an honorary vice-president of the Trading Standards Institute.
The Government continue:
“There may be alternative non court based solutions in some cases, for example, through regulators and ombudsmen”.
I am rather surprised that they did not add Which? and the helpful columns in the Guardian and weekend newspapers while they were at it. However, that is a considerable oversimplification and an underestimate of the problems which people face. Professional negligence is not merely confined to the recognised professions of solicitors or accountants, for example. Even members of the Bar can be sued for professional negligence, and that has been the case for some time. The conduct of financial advisers, like that of some other professions, might result in considerable loss to people. There is also the builder who botches the job or the architect whose design is defective. All these matters can affect many people and involve them in considerable financial loss.
It is certainly possible to obtain some alternative advice. On Monday, my noble friend Lord Stevenson spoke to an amendment about debt. He is the chairman of an organisation called Consumer Credit Counselling Service, which offers advice in the realm of consumer credit. However, that is not face-to-face advice and anything more complex has to be referred on. My noble friend advised me that that organisation tends to refer matters to the citizens advice bureaux. There is an assumption on the part of the Government that the capacity of organisations such as the citizens advice bureaux, law centres and other bodies is capable of infinite expansion. Apparently, they will be able to undertake the very large volume of cases which will henceforth be denied legal aid or legal advice. However, not only will it be impossible to obtain legal advice from solicitors, but when the very funding of those organisations through government grant for legal advice and assistance will also be cut, they will have a massively increased demand and a diminished resource with which to meet that demand, unless they obtain a soupçon from the £20 million which the noble Lord, Lord McNally, has waved about as being available for some indefinite time to assist in dealing with these problems. That is an extremely unsatisfactory solution to the problem because it is no solution. It is interesting that the Government do not specify in any detail their assessment of the availability of these possible alternatives, simply relying on the fact that there may be alternative non-court based solutions.
The really worrying feature, which again underlines the unsatisfactory nature of the Government’s attitude to this and other cases which we will be considering and have already considered, is summed up in their response to the consultation when they say:
“Although there may be exceptions, in our view the individuals bringing these cases are not likely to be particularly vulnerable compared with, for example, those in the mental health category”,
for which, in fairness, provision will be made. But, again, that is a comparison which has no significance at all, and it is not the comparison that the person who is denied access to justice will make. He or she will rightly make the comparison with somebody who has the means to afford that advice and representation. We are creating a two-tier system of justice, one in which you can buy your way in if you have the means and another in which you will effectively be denied it if you do not have the means. In areas such as this where significant harm can be inflicted on individuals—admittedly, that is not physical harm but pecuniary harm, stress and distress—it does not seem appropriate to deny them the access which the very modest funding that is involved currently allows.
The Government should look at this matter again. Over recent years, Governments of both political persuasions—perhaps one should now say of all three—have championed the cause of consumers. We are talking now about predatory capitalism or responsible capitalism and the rest of it. We ought to be looking at the bottom of the scale of providers, if you will, and at how people can be best enabled to pursue remedies against those who inflict harm on them, because this Bill does not assist in that respect. I beg to move.
This is another important amendment and I would like to support my noble friend Lord Beecham, who has moved it. If the Government suggest that caveat emptor is a sufficient answer to the case made by my noble friend, they would be wrong. If the Government say that it is simply up to the consumer not to buy shoddy goods or not to avail themselves of shoddy professional services, it will not do—particularly in the provision of services.
Professional self-regulation is not always all that it ought to be. Although we should always guard against the assumption that things are not what they used to be—a view that we are a little bit liable to become attached to in your Lordships' House—none the less, I think it is fair to say that the professional ethic has become somewhat attenuated over recent decades. We see, for example, the advertising of professional services in ways that we did not in the past. We see the marketisation of professional services, arising in part out of contracting out, and the general widespread extension of market values and market practices, which in many cases have led to greater efficiency and greater availability of services. However, they also carry the risk that those who offer these services may become a degree less scrupulous when the ethos is that of the market.
People find themselves beset by parasitic professionals. The purveyors of subprime mortgages may have been the most offensive instance in recent years that one can imagine, but there are many other cases. It will not do to leave the ordinary citizen vulnerable to predatory, grubby and dishonest so-called professionals. The issue of equality of arms that arose in the previous debate on employment law arises here, too, because the ordinary citizen may come up against professionals, or those who represent them, who are highly articulate, able to speak the jargon of a specialised field and can afford expensive advice. It must be an elementary principle that there is access to justice on sufficient equal terms to enable citizens who have been poorly, dishonestly or improperly served by professional advisers to have some remedy.
My Lords, I have some sympathy in this area. I also have a great deal of sympathy with what has been said on previous amendments, because there is a distinct grouping of those who have the means to cope with their own cases and those who do not. In this particular case, consumer law has been a matter that we have only recently begun to take an interest in—indeed my noble kinsman was the first ever Minister of Consumer Affairs. I remember that I was immediately enthused because I thought that it would make him much more interested in all the goods and facilities that I might be interested in buying. I have to admit that it did not quite work out that way. He was much more interested in the number of ounces and proportions described on the back of a product, and so on.
Nevertheless, on the other point made by the noble Lord who moved the amendment, we have concerns about the organisations that protect the consumer. Which? is obviously an important organisation, as are CABs in other areas also. If their funds are going to be cut in the way proposed, we will have problems. As I said, I have sympathy in these areas. I hope that what has been said will be taken into consideration, because there will be serious consequences in certain cases. In the most serious cases there will be facilities to represent them—or at least I certainly hope so—but people in cases which are not recognised because no legal advice has been available will lose out. As has often been said, that will lead to increased costs to the state.
My Lords, I want to underline and strongly support one point made by my noble friend Lord Beecham, and referred to by the noble Baroness, Lady Howe, and that is the impact of these changes on the organisations that are providing just the alternative support that the Minister referred to. The Bill is about taking money away not just from lawyers but from organisations that are supporting people in an important time of need.
I speak with some knowledge of this as I have had a long history in the pro bono movement. I declare an interest as chairman of the Access to Justice Foundation. One of the things that we do is to distribute regrettably small sums of money, because that is all we have, to organisations that support consumers and provide free legal advice and representation. Those small sums are going a long way towards helping people, but I know how much more is needed. I have seen organisations going to the wall, unable to continue because they depend and to some extent scrape by on a little bit of legal aid.
I should very much like to hear from the Minister just how he and the Government believe that the alternative services to which he referred can continue in the light of the cuts that the Bill is making in this field.
I am rather frightened that too many people are going to find themselves without any remedy. That is bound to arise in many instances. I hope that the Minister will sympathise with them because having an effective remedy is vital. I am not talking about professional advice but about being able to take something to a tribunal and being heard—and being heard equitably. It is not simply that people of this kind—we are talking about consumers at the moment—ought to feel that when they are treated shoddily their point of view will be heard. I am afraid that that is unlikely to be the case and they will be sort of disfranchised. People who are inarticulate and disfranchised can resort to rather unhelpful remedies.
My Lords, the effect of the amendment moved by the noble Lord, Lord Beecham, would be to make civil legal services available for consumer matters. There is a degree of familiarity about the pattern of these debates. I do not think that I am speaking out of turn in saying that the previous Administration and the Labour Party went into the last election with an understanding that the legal aid system would have to be reformed. What I find difficult in listening to the debates—and I hope that I am not offending anyone—is the sentiment, “Lord make me chaste, but not just yet”. We must reform legal aid, but when examples are presented people say, “We don’t want to reform that part of it”.
The Minister is making an important point, and he is justified in making it, but it is false. We have set out what we would have done to make savings in the legal aid budget. Our proposals would have applied largely to the criminal law, and particularly to the role of solicitors. Although I am prepared to go into details, the Committee would not be very interested in it at this stage. Our proposals would have saved a considerable amount of money. The Law Society itself has made recommendations on savings. I know that noble Lords from the Liberal Democrat Benches will later suggest a possible source of savings on criminal legal aid as well. There are alternatives out there. The one thing we committed ourselves not to do was to cut social welfare law, because we recognise that, for a relatively small amount of money, it did an incredible amount of good. Our opposition to the Government is based on the fact that they have picked on social welfare law, attempting to decimate it so that it no longer exists. That is a justified criticism that has not yet been answered.
My Lords, I am grateful to the noble Lord for setting out that position. As he said, we will come to issues of criminal legal aid later today—I hope; I am sure.
This is going over old ground, but it is important. The scale of the deficit reduction that has been required exceeded what many of us thought before we came into government in May 2010. As I said, that has resulted in some difficult decisions. On two occasions, the noble Lord, Lord Beecham, said that it was unfair to make that point with regard to professional negligence cases. He cited the response to the consultation, when we said that those were claims concerned primarily with recovering damages and that we considered that their relative importance was generally low compared, for example, with issues of safety and liberty. He seemed to say that that is so blatantly true that it does not add anything.
If one has limited resources, those are the kind of priority judgments that must be made. In Schedule 1, we have tried to apply those priorities in different circumstances. Again citing the response, he said that people who would be bringing damages claims were not likely in general to be vulnerable compared with detained mental health patients and elderly care home residents, who are unable to present their own case. He agreed that that is clearly the case. If we have to establish priorities, I think he would agree that priority would go to a detained mental health patient or an elderly care home resident.
If there was an unlimited fund of resources, the noble Lord’s point would have far more force, but given that there is not, given that decisions have had to be made as to what comes within scope and what does not, I think the balance that we have sought to strike of giving precedence to issues of life, liberty and homelessness is proper.
It is for that reason that we did not include consumer claims within the scope. The noble Lord raised the question of professional negligence cases. It is fair to say that, when we come to Part 2, conditional fee agreements may be available for cases involving damages. That makes the provision of legal aid in such cases less likely to be justified. As has already been well rehearsed, other sources of advice are available on consumer matters. There are trading standards officers, Consumer Direct and alternative non-court based solutions through regulators or ombudsmen—such as the Financial Ombudsman Service for people with complaints about financial services or Otelo for complaints relating to telecommunications.
The noble Baroness, Lady Howe, talked about the cut in CABs’ funding. Of course, there will be an impact on CABs’ funding from legal aid, although it is estimated that that is only 15 per cent of CABs’ funding. At the risk of saying this yet again, the Chamber will be well aware that the Government announced a further £20 million funding in June last year for not-for-profit advice agencies and are considering funding for future years. Last February, £27 million was announced for continued funding administered by the Department for Business, Innovation and Skills for this financial year to maintain the face-to-face debt advice programme in citizen's advice bureaux and other independent advice agencies across England and Wales.
To pick up the important point made by the noble and learned Lord, Lord Goldsmith, additional funding has been announced for not-for-profit advice agencies, and the Government are considering funding for those organisations for future years. As parallels the previous debate, we will retain legal aid for consumer matters where they concern an alleged contravention of the Equality Act 2010. Many cases involving the Equality Act will be within scope.
At the end of the day, it boils down to the fact that, with finite resources, priorities have to be made. We have had one of, if not the most, generously funded legal aid schemes in the world. Even after the changes are implemented, should the House pass the Bill, it will still be a very generously funded legal aid system. Regrettably, some choices are very difficult, but I hope that the priorities we have identified stand up to scrutiny. It is more than axiomatic that when you have limited funds, life, liberty and dealing with homelessness and discrimination are important and that people who are less able to articulate their case or defend themselves should have priority. On that basis, I urge the noble Lord to withdraw his amendment.
My Lords, I am grateful to my noble friends Lord Howarth and Lord Clinton-Davis, my noble and learned friend Lord Goldsmith, and the noble Baroness, Lady Howe, for their contributions. I am also grateful to my noble friend Lord Bach for his intervention, although if the Government were proposing only to decimate legal aid—to take 10 per cent off—I would almost be prepared to accept that. I think he was using the phrase in the vernacular sense rather than the literal sense, because we face a much bigger reduction in legal aid and advice on funding than the 10 per cent actually means.
To refer back to my noble friend Lord Howarth's contribution in an earlier debate, he was asking about the knock-on costs of some of the changes. It may interest him to know that I have tabled a Question for Written Answer inviting the Government to say what estimates they have made of the cost to other government departments and whether those departments have accepted them or made any representations about them.
The noble and learned Lord again advances the mantra about life and liberty, and of course they are most important. I am tempted to say that the Government believe in life and liberty but not in the pursuit of remedies, to paraphrase. More importantly, we are seeing the virtual death of equality before the law. There are areas where inequality will be deepened for a modest saving, at the very best. That is a socially divisive measure. It runs contrary to the big society concept and some of the words that we are hearing. The practical effect will be the denial of justice to far too many people. At this stage, I beg leave to withdraw the amendment, but it is a matter to which we may well return.
Amendment 82ZB withdrawn.
Amendment 82ZC not moved.
Amendment 82ZD (in substitution for Amendment 86)
82ZD: Schedule 1, page 136, line 34, at end insert—
“Appeals where court or tribunal certifies complex point etc.(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that—
(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (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.”
My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges’ Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:
“Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application—a fortiori in the case of ‘second’ appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive”.
Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.
My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.
I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema—a picture house—in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.
My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.
I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?
Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.
First, I would have to discover the relevant forms—whatever they are—which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities—the reports of the earlier cases that will be relied on—will have to be compiled and given to the court and the other side as well.
How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An “exceptional case” must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,
“compelling reason why the proper conduct of the appeal requires the provision of civil legal”,
aid, brings in just that factor that is currently missing.
If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.
I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.
The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,
“a complex issue of law … wider public interest … some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services”.
I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.
My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person—and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid—albeit subject to the relevant court certifying one of the matters listed in the amendment—for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.
Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9.
As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1.
One area of distinction is that the amendment also seeks to bring into scope any case which is 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. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance.
Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision.
I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.
My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches that we heard. My noble friend Lord Carlile pointed out that under Clause 9 it is the director of legal aid who will determine whether, in exceptional cases, legal aid should be granted. I cannot imagine any director who would have in his mind the full scope of the issues that can arise in appeals against decisions from tribunals and courts. I would have thought that the Government would have welcomed, as a safeguard, the fact that civil legal services will not be provided unless there is a certificate expressly stating why legal aid should be granted in the case. That will be an advantage, rather than leaving it to the director of legal aid, whose decision may well be challenged by way of judicial review. Surely satellite litigation is the one thing that we want to avoid when we pass the Bill.
The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.
Amendment 82ZD, in substitution for Amendment 86, withdrawn.
Amendments 82A to 82D not moved.
Amendments 83 to 86 had been retabled as Amendments 82ZA to 82ZD.
Amendments 87 to 89 not moved.
90: Schedule 1, page 137, line 38, leave out paragraph 16
My Lords, like the Minister, I learnt tort. In my case, it was at the feet of no less a person than the noble and learned Lord, Lord Hoffmann, and I remember those days with great affection, but in the course of my career I have also been involved in criminal injuries compensation cases, and I shall refer later to some of the problems that they throw up.
Once again, the Government have consulted about these matters, and once again the response from those consulted has been almost wholly negative. Nevertheless the Government, on the grounds that we are now very familiar with, are clearly going ahead with their determination to withdraw any form of legal support in the way of advice—representation was not covered—from the scheme.
This scheme is so simple that it takes only 55 pages to set it out in the statutory instrument and a mere 113 pages in the guide to the scheme that is available to potential claimants. It is fair to say that the guide also includes the tariff that for some time now has been substituted for what was a wider area of discretion for tribunals to award.
Before I come on to the issues that can confront claimants, one of the points that the Government have made is that support is available from other sources, including the compensation authority itself and Victim Support. However, Victim Support does not provide legal advice, and it is very questionable whether a telephone, or even online, conversation with the authority can help all claimants, or indeed perhaps the majority of them, because there are issues. It is not simply a case of having to establish that a criminal injury has been sustained; there are issues that can be taken into account by the tribunal in determining whether to grant an award or to reduce an award that would otherwise be available.
A number of factors come into play, such as the conduct on the occasion of the claimant, a procedural delay in reporting the matter, or a failure to co-operate with those inquiring into the matter. These might be for inadequate reasons—sloth, neglect or reluctance—but they might arise from concerns about whether bringing a claim might provoke an assailant, for example, or because the situation has created such stress that the person may not feel able to pursue matters. There are other matters too; a criminal record might disqualify or allow an abatement of an award that would otherwise have been made. Those matters—the matter of conduct, for example—are matters on which applicants might very well need advice and assistance. It will not be legal aid advice or assistance if this clause stands.
I clearly recall representing a client where conduct was an issue. He had to be advised about that, and as I was representing him I had to put the case about those matters. Equally, I had to deal with someone with a criminal record. It was not particularly relevant. He had not been convicted of a violent crime, so it was not particularly germane to whether he should have a deduction or, at any rate, a significant deduction. One of my most vivid recollections is of a very sad case of a lorry driver who was driving his lorry and was the victim of a road accident in which the driver of a sports car rammed into him head on and went underneath the cab of this client’s vehicle. He sustained some physical injury but, much worse, he sustained severe post-traumatic stress.
This was a complex case in medical terms and in terms of the quantum that the client might be seeking—at that point, there was no tariff. The case took a considerable time, and we were able to secure an interim payment for him. Tragically, this man took his own life as a result of the post-traumatic stress. In those circumstances, his widow had a sustainable claim, and the case went on. I am not saying that that was a typical case, but it is an example, perhaps a most acute example, of a case where legal advice and assistance was indispensable to the client. There will be others of that kind for which such advice will not be available in future. That cannot be right. I simply add this to the list of cases for which the amount that it would cost to restore or retain legal aid and advice to scope would be relatively modest, and accordingly I beg to move.
I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, “What’s he saying?”, and the chairman replied out of the side of his mouth, “I haven’t a clue”, so I said to the applicant, “Would you mind speaking more slowly please?”. He looked at me and said, “Eh?”. He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.
My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.
My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.
My Lords, I have listened carefully to the representations and arguments put forward. Amendment 90 would delete paragraph 16 of Part 2 of Schedule 1:
“Civil legal services provided in relation to compensation under the Criminal Injuries Compensation Scheme”.
I think I am right in saying that the architecture does not apply right across the board for criminal injuries, but only in cases that are brought within scope under Part 1.
I note what the noble Lord, Lord Beecham, said about the potential complexity of applying and the advice given to possible applicants, although I think it is fair to say that applications can be made online and by telephone, and the Criminal Injuries Compensation Authority itself provides help and guidance.
I rather suspect that the numbers involved are small, although I could not indicate just how many, but I have listened, I believe that some important points have been made, and I want to reflect on this—without any commitment. On that basis, I ask the noble Lord to withdraw his amendment.
I am extremely grateful for—not to say surprised and delighted by—the noble and learned Lord’s generous offer, and I hope that we can take matters forward in the spirit that the noble Lord, Lord Phillips, referred to. I withdraw the amendment.
Amendment 90 withdrawn.
Amendments 90ZZA and 90ZZB not moved.
90ZA: Schedule 1, page 139, line 1, at beginning insert “Advocacy in”
My Lords, the government amendments in this group in the name of my noble friend Lord McNally are designed to give better effect to the stated policy intention.
Under the proposals that we are putting forward, advocacy should be available for preliminary and incidental proceedings only where those proceedings take place in the same forum or venue as the proceedings that are in scope. We do not believe that this is sufficiently clear in the Bill as currently drafted. Therefore, Amendment 90D deletes from paragraph 5 of Part 4 of Schedule 1 the reference to Part 3, and Amendment 90E introduces a new sub-paragraph that clearly sets out that advocacy will be available in preliminary or incidental proceedings in the same venue as those set out in Part 3.
Amendment 90F is consequential to the amendments that I have just described. Amendment 90G inserts a new sub-paragraph to provide a power that allows regulations to make provision on when one set of proceedings is related to another. Amendment 90C makes it clear that advocacy for an in-scope area will be available in relation to bail proceedings and enforcement proceedings in any venue. Amendment 90B has been tabled to ensure that correct references are made in paragraph 24 in relation to the rest of Part 3. More technically, Amendment 90ZA corrects a slip in the original drafting and makes the wording of paragraph 10 of Part 3 of Schedule 1, which is about advocacy for the Mental Health Review Tribunal for Wales, consistent with the wording of the rest of Part 3 of Schedule 1. I beg to move.
I thank the noble and learned Lord for moving these amendments so succinctly and clearly. This side of the House has no objection to them at all.
Amendment 90ZA agreed.
Amendment 90A not moved.
Amendments 90B to 90G
90B: Schedule 1, page 140, line 11, leave out “the preceding paragraphs” and insert “any other paragraph”
90C: Schedule 1, page 140, line 12, at end insert—
“25 Advocacy in bail proceedings before any court which are related to proceedings within any other paragraph of this Part of this Schedule.
26 Advocacy in proceedings before any person for the enforcement of a decision in proceedings within any other paragraph of this Part of this Schedule.”
90D: Schedule 1, page 140, line 32, leave out “2 or 3” and insert “or 2”
90E: Schedule 1, page 140, line 41, at end insert—
“( ) Where a paragraph of Part 3 of this Schedule describes advocacy provided in relation to particular proceedings in or before a court, tribunal or other person, the description is to be treated as including services provided in relation to preliminary or incidental proceedings in or before the same court, tribunal or other person.”
90F: Schedule 1, page 140, line 43, leave out “sub-paragraph (1)” and insert “this paragraph”
90G: Schedule 1, page 141, line 3, at end insert—
“( ) when proceedings are related to other proceedings.”
Amendments 90B to 90G agreed.
Schedule 1, as amended, agreed.
Clause 9 : Exceptional cases
91: Clause 9, page 6, line 16, after “breach” insert “, or
(c) that it is in the interests of justice generally”
My Lords, I rise with a sense of relief, now we have got through Schedule 1.
The amendments grouped with my Amendment 91 seek to clarify or perhaps extend the circumstances in which an exceptional case determination can be made under Clause 9(3). At the moment, as drafted, that subsection says that an exceptional case determination is one that,
“is necessary to make the services available”
“a breach of … the individual’s Convention rights … or … rights of the individual to the provision of legal services that are enforceable EU rights, or … 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”.
In other words, an exceptional case has to fall within a breach of the individual’s convention rights for funding to be granted at all. That is far too narrow a situation.
Amendment 91 is a perfectly simple amendment that says that exceptional funding should be available when,
“it is in the interests of justice generally”.
The amendments that are grouped with mine, in the name of the noble Lords, Lord Bach and Lord Beecham, rather extend that definition, but the idea is simple enough. We believe that Clause 9 does not go far enough to address the gap in funding for parties that need representation. It is not sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case. I have already referred to what the Judges’ Council had to say on this issue in addressing a previous amendment.
The exclusion of private family law from legal aid is likely to make the operation of this clause particularly problematic. There is a long line of Strasbourg cases to the effect that at least some family cases not involving domestic violence require legal aid to be available. Serious injustice would be caused if parties to these emotionally charged cases were forced to act in person. In practice, even under the clause as drafted, it is likely that a large number of cases would have to be treated as exceptional because of the risk of a breach of the right to a fair hearing under Article 6 of the European convention.
However, the problem does not end there. Article 6 does not apply in cases of an administrative character. Many cases of that kind, which reach the courts from tribunals or decision-making officials, involve important issues about education, privacy or social care, for example. Unfairness can have devastating consequences for individuals. Not surprisingly, the English courts have long accepted that domestic law in these cases imposes the same standards of fairness as Article 6. However, Clause 9 would not permit exceptional funding to be granted to avoid a miscarriage of justice in a case of this sort. It is very interesting that the coalition Government, in which there is a certain element of the Conservative Party, are limiting exceptional funding to a breach of convention rights and not to the English common law that would show that an injustice might follow.
This amendment ensures that an exceptional case determination may be made where it is appropriate in the interests of justice generally, not merely in cases where there would otherwise be a breach or a risk of a breach of the European convention. I beg to move.
My Lords, this is an important group and anything I say of course comes with the proviso that we too support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have put down an amendment proposed by the Law Centres Federation, which many noble Lords will know is responsible in many ways for the law centres dotted around England and Wales. I think that it is generally agreed by noble Lords and those outside this Committee that the federation does a fantastic job on very small resources. It gives poor people and others a chance to have access to justice to sort out their legal problems. That is at the very heart of Part 1 and I am privileged to put forward this amendment, which the Law Centres Federation originally proposed.
Exceptional funding is a proposed essential safeguard in a legal scheme that obviously seeks to exclude whole areas of law from cover. It is a mechanism by which individuals who suffer particular injustices as a result of these broad exclusions that we have been debating can in exceptional circumstances obtain legal aid to help them assert their rights. We believe that it is wrong to remove whole areas of law from scope rather than consider individual cases, as no account is taken of the importance of the case to the individual or their ability to address their legal problems by other means.
Clients with physical or mental health difficulties or with low levels of education may be wholly unable to resolve their problems without legal-aided support. They will also be seriously disadvantaged when facing, as we have been debating in the past few minutes, unusually complex areas of law or well funded opponents employing significant expert legal resources. To address this injustice, the Government rely on their proposed exceptional funding provision in Clause 9.
However, Clause 9 as drafted is too narrow, as the noble Lord, Lord Thomas of Gresford, has persuasively argued, and is problematic in a number of ways. First, as I have said, the clause is too narrow and depends on proving human rights or European law concepts. These highly complex areas of law are still meant as the only gateway to legal aid for individuals who, by definition, are often not in a position to deal with their underlying legal problems.
Secondly, Clause 9 excludes any prospect of legal aid for the initial advice and assistance stage, which is often the stage at which most help can be provided to the client to resolve matters and has the inestimable advantage of avoiding more costly litigation. I ask the noble and learned Lord when he replies to consider whether the proposition that I have just put as regards the initial advice and assistance stage is out of scope.
The current draft clause states that to acquire exceptional funding a client would have to prove that refusal of legal aid would be in breach of “the individual’s convention rights” or their rights,
“to the provision of legal services”,
under European Union law or,
“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”.
However, in determining which areas of law to leave in scope and which to exclude, the Government have used some more approachable tests: namely, is the client likely to be particularly vulnerable; is advice and representation available from other sources; is the area of law complex; and, finally, can the client deal with matters or represent themselves? Given those considerations, surely it is appropriate to have an exceptional funding provision also based on these tests. That is the basis of the amendment to which I am speaking at the moment.
In addition, and recognising that preparing an exceptional funding application is likely to require the assistance of an adviser, especially if arguments on human rights and European law need to be formulated, we propose a new subsection (7) to be inserted in Clause 9. This broader provision would enable decision-makers to award exceptional funding in circumstances where, despite the tests used to underpin the excluded areas of law, the client’s vulnerability or health is such that they cannot represent themselves and have been unable to find alternative sources of advice and assistance. That amendment would also provide a safety net for children and young people under the age of 18. It would enable provision of legal aid funding where, despite the underlying area of law being excluded, it is in the interests of justice. This is where we come back to the noble Lord’s amendment for legal aid to be provided, whether at the request of the courts or on the client’s application. We believe that without such amendments children and vulnerable adults will not only have great difficulty in accessing advice and asserting their rights in excluded areas of law, but will also be effectively excluded from the safety net of the exceptional funding scheme. It is on that basis that I put forward the amendments in this way.
Amendment 92, which is also in our names, introduces a requirement for the director of legal aid to consult the chief coroner when making determinations about inquests. The Committee will be well aware that the chief coroner is intended to provide leadership within the coronial system. It has been a matter of great debate in this House. The Government are to be congratulated on keeping the position of chief coroner. Through that role, the chief coroner will be in a unique position to understand the nature of inquests considered on a national level and how a particular case perhaps fits in and, more fundamentally, whether there may be a wider public interest in respect of the individual and the inquest itself.
We argue that it appears appropriate to design the legal aid system in respect of inquests with this provision in place. Will the Minister confirm whether the dialogue with the judicial office in respect of the chief coroner post has progressed to any action in establishing the post, and when can we expect to have an announcement of a new chief coroner being appointed? The Minister need not give the answers to these questions now. If he would write to me on that, I should be equally grateful. What other steps are being taken by the ministry to establish this statutory office, including accommodation and support staff? I should be grateful if in due course he could let me know the answers to those questions in writing.
As I said at the start, we agree with the amendment moved by the noble Lord, Lord Thomas of Gresford. Clause 9 is much too narrowly drafted. We have spoken to these amendments because they are worthy in themselves but we should like to see the Government give a little ground as regards Clause 9.
My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the “exceptional case determination” exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.
The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.
My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.
I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the “interests of justice”, and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general “interests of justice” exception. I hope that the Government will take this opportunity to put our minds at rest.
My Lords, I would like to support this group of amendments. I am sure that some tidying up is needed, but on looking at the areas covered, I had thought originally that I was probably keener on the generality of the amendment tabled by the noble Lord, Lord Thomas of Gresford, because it gives scope for decisions based on individual circumstances. Amendment 91A is more detailed and spells out several important areas, and that is helpful in many ways, but I wonder whether the age limit, when we are talking about vulnerable or disabled children, or even more important, children who have been in care, is not too low and should not be much closer to 25. However, I strongly support the intentions behind this group of amendments.
My Lords, it is important that we have moved on to Clause 9, covering exceptional funding, because this has been discussed in earlier amendments. Amendment 91, moved by my noble friend Lord Thomas of Gresford, would allow the director to fund excluded cases where he or she determines that it is generally in the interests of justice to do so. I am sure that Members of the Committee will readily acknowledge and appreciate that in this context, the phrase “interests of justice” is capable of wide interpretation. The amendment would create a power, which I am sure is its intention, that is considerably broader than the one currently being proposed in Clause 9 as it stands. It is right that there should be an exceptional funding scheme and that it should provide a potential safety net for the protection of individuals’ fundamental rights of access to justice, and we believe that Clause 9 achieves that important end. Exceptional funding determinations under Clause 9(3) will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
Following on from that and looking at the jurisprudence, in considering whether legal aid should be provided in an individual case, the kind of factors that the director will need to take into account include: the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent themselves effectively; and alternative means of securing access to justice. These factors are broadly similar to the considerations that the Legal Services Commission currently takes into account in criminal proceedings where it is in the interests of justice for legal representation to be provided. I would suggest that our exceptional funding provisions are likely to meet the concerns of noble Lords in civil cases where, for example, Article 6 of the European Convention on Human Rights is engaged. Indeed, in moving his amendment, my noble friend Lord Thomas of Gresford accepted that there is substantial case law from Strasbourg in relation to family law and he almost seemed to acknowledge himself that there was a potential for very many cases indeed to qualify under the exceptional funding provisions as set out in the Bill. However, we believe that the insertion of the general phrase “interests of justice” would be open to very broad interpretation and would risk undermining the approach, scope and rationale for making changes to the legal aid system.
It has been acknowledged that Amendment 91A, tabled by the noble Lord, Lord Bach, covers similar territory in that it would allow the director to make exceptional case determinations when it was appropriate to do so against specified criteria. As with Amendment 91, the potential ambit of this is extremely broad, and certain elements would be open to very wide interpretation. Again, however, I believe it is worth noting that many of the factors listed in the amendment, such as,
“the client’s vulnerability … the client’s capacity to represent themself … and … the availability of alternative sources of”,
funding will form at least part of the test for exceptional funding where Article 6 is engaged.
Amendment 91A also specifically refers to clients under the age of 18. In considering whether an individual case meets ECHR exceptional funding criteria, the director would be obliged to consider the ability of the client to present their own case, having regard to the complexity and importance of the issues in terms of what is at stake. Where a child brings an action without a litigation friend, that would be a relevant factor in deciding whether or not they have the ability to present their own case. In the end, the factors I have indicated will be taken into account by the director in deciding whether the absence of legal aid would mean that it was practically impossible for the applicant to present their case or would lead to an obvious unfairness in the proceedings.
The noble Lord, Lord Bach, asked whether legal aid would apply to advice and assistance. The answer is that in principle it could do so to the extent that it would avoid the breach of an individual’s rights under, for example, Article 6. Amendment 92 raises the issue of the chief coroner—
My Lords, in relation to Amendment 91, does the noble and learned Lord accept that Clause 9(3) as currently drafted will require the director to spend much of his or her time making determinations as to the scope and application of convention rights rather than focusing on the easier question of whether or not the interests of justice require legal aid? I would suggest to the noble and learned Lord that there is a real danger of satellite litigation as to whether or not convention rights or EU rights are in fact breached. Would it not be much more sensible and efficient, and much less expensive, to leave the director to focus on what he or she will be good at, which is asking whether the interests of justice require legal aid?
As ever the noble Lord puts a seductive argument, but there is a certain advantage in the director being required to have regard to convention rights because, if the test was the wider one of the undefined interests of justice, I am not sure whether that would lead to any less satellite litigation; it is possible that it could lead to more. He says that it would be easier, but when faced with that test without any guidance—with the exception of a certain amount of specificity set out in the amendment tabled by the noble Lord, Lord Bach—there would not be any real steer for the director if that is all he is to be left with when making decisions.
It would be very difficult to challenge a director’s decision as to whether the interests of justice are met because it is a subjective test. If the test, as under Clause 9(3), is hard-edged—that is, whether there is a breach of the convention—it is much easier to bring a legal claim in that respect.
Having a definition which in these circumstances would be so broad—which I think the noble Lord is saying is a merit of it—opens up vast scope, as I said in response to my noble friend Lord Thomas.
I shall have my chance to reply later, but it is important that we focus on this. My noble and learned friend says that it is a broad interpretation and opens up a wide field, but everything is governed by that word “exceptional”. We have referred to that word in earlier discussions and debate during the passage of this Bill. “Exceptional” takes it out of the ordinary; it is unusual, outside what is normal. That cuts down the broad interpretation. You need a wide field because exceptional cases do not arise simply in relation to what the noble Lord, Lord Pannick, referred to as the “floor”—the minimum rights guaranteed by the convention; they can come out from left field, as the Americans would say. Something quite unexpected is exceptional, which would not necessarily engage the rights under the European convention or European law. “Exceptional” cuts down the broad interpretation for which the noble Lord is arguing.
It may cut it down, but it leaves it still without any parameters, subject to “exceptional”, whereas in what is being proposed the kind of factors which the director would be required to take into account are those which I think people would agree are relevant, particularly in determining whether an application is exceptional. The importance of the issue is to the individual concerned: the nature of the rights at stake, the complexity of the case, the capacity of the individual to represent him or herself effectively and whether there are alternative means of securing access to justice. These are not airy fairy considerations; they are ones which I would fully expect the director to be able to bring to bear in dealing with individual cases, and I am sure he would do so. Everyone who makes an application no doubt thinks that their case is in the interests of justice and that it should be funded. At least, there is some indication here as to what criteria the director will apply.
On Amendment 92, I accept what the noble Lord, Lord Bach, said, and we will ensure that the specific questions that he asked about the chief coroner get a response as soon as we can. His amendment would make it a requirement for the director to consult the chief coroner and have regard to his views before making a significant wider public interest determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case.
The Government consider it important to retain the ability to fund inquest representation on the basis of the wider public interest because the provision of such representation may lead to findings which help prevent future deaths. That is why Clause 9(4), which I think in its generality the noble Lord welcomes, gives the director the power to provide funding on the basis of a “wider public interest” determination.
The onus has never been on the decision-maker to consult coroners—I am well aware that I am in the presence of someone who had to make these decisions on many occasions and I recognise the experience of the noble Lord, Lord Bach, in these matters. Indeed, many coroners may not wish to give a view at all. Some are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention.
Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has significant wider public interest.
I apologise for interrupting my noble and learned friend. He may be aware that a boy called Jake Hardy died today as a result of suicide in Hindley Young Offender Institution, a matter that I am sure we would all regret and wish to express our deep sympathy to his family. Can he really see a distinction in inquests between a case in which that young man’s family have an interest and a case in which a wider public have an interest? Is it really the intention of the Government that the family should not be entitled to legal aid if it is not identified that there is a wider interest in the outcome of the inquest? That is a distinction made by this clause.
My Lords, I have to confess that I have not heard that news, although they are obviously tragic circumstances and I associate myself with expressions of regret. When one does not know the circumstances, I always find it very difficult to extrapolate from them to a wider general principle. I hope that my noble friend will forgive me if I do not follow him down that line, because I simply do not know all the facts and circumstances.
In decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the ECHR, it would seem incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the significant wider public interest aspect of the case. To compel the director to consult the chief coroner in all cases which come for a determination is likely to add considerably to the administrative element of the assessment process and lead to delays for bereaved families. In turn, it would represent a burden on the chief coroner, who would almost certainly be unfamiliar with the circumstances of many cases, unlike the individual coroner who is holding the inquest. The chief coroner would therefore be required to acquaint him or herself with information pertaining to a number of cases with no obvious benefit for bereaved families, who have a locus in this. In these circumstances, there is no obvious benefit in individual coroners or the chief coroner mandating what would inevitably be an additional process in the legal proceedings.
Amendment 92A would compel the director to make provision for the payment of reasonable costs incurred by any person making a successful application under this section. The concept of “reasonable costs” is open to broad interpretation and might be seen to authorise payments at a commercial rather than a legal aid rate. Nevertheless, discussions with the Legal Services Commission about the precise remuneration arrangements for exceptional funding applications are ongoing and we fully expect to propose that the costs associated with the making of successful exceptional funding applications will be payable. I hope that that gives some reassurance to the noble Lord.
The exceptional funding scheme being introduced by the Government will give the director a narrowly drawn power to provide civil legal services that are not available under Schedule 1—hence their being “excluded cases”—where there are exceptional circumstances. We have reviewed questions of the European convention and issues relating to the death of a family member. An individual must qualify for such services in accordance, too, with Clause 10, which means that decisions on exceptional funding will be subject to the means and merits criteria. However, we believe that this is an essential safeguard for fundamental rights of access to justice which will underpin our proposals for changes to the scope of civil legal aid. The Director of Legal Aid Casework will make these exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions in relation to excluded cases. Clause 4(4), which has already been debated, explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases. This will guarantee the objectivity of the decision-making process, in respect of both in-scope and excluded cases, and serve as a safeguard against political interference.
Clause 9(3)(a) provides the director with the power to make an exceptional case determination where the director considers that the failure to provide legal services to an individual would be a breach of the individual’s rights under the convention or European Union law, as we have discussed.
I recognise that concerns have been expressed about the parameters of the exceptional funding scheme that the Bill will create. I am sure—it is obviously the case—that many noble Lords would prefer a broader discretionary power in the Bill but, if I may take the Committee back to the fundamental purposes of the changes that we are making to the general legal aid scheme, we need these reforms to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue; the litigant’s ability to present his or her own case, including the vulnerability of the litigant; the availability of alternative sources of funding; and the availability of other routes towards resolution. We have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases—again, I repeat, essentially where, first and foremost, people’s lives and liberty are at stake; they are at risk of serious physical harm; they risk the immediate loss of their home; or their children may be taken into care. If we make wholesale changes to the exceptional funding provisions in the Bill, we risk undermining the overall reforms to the scope of civil legal aid.
That said, it is nevertheless our expectation that there will be several thousand applications under the new scheme and that there will not be a fixed budget for exceptional funding. It is our intention to publish more details concerning the operation of the proposed exceptional funding scheme and the associated guidance in due course. The guidance will largely be based on the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
In these circumstances, we believe that this will be a route down which applicants will go and, as my noble friend said when moving his amendment, that it will cover a considerable number of cases. I invite my noble friend to withdraw the amendment and to be reassured by the structure and architecture which is in place with this important clause, in addition to those cases which already will be in scope under Schedule 1.
My Lords, having listened to what we have heard in connection with these amendments, it occurs to me, first, that, for some reason which is no doubt clear to some, “exceptional” is used in order to be defined, so the exceptional quality does not come into the definition of exceptional cases.
My second point is that, although “the interests of justice” is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase “the interests of justice”, which has been used in many contexts in the past. I agree that, on the whole, it is a vague phrase, but turning it round might make it a little more attractive to my noble and learned friend.
My noble and learned friend focuses on the word “exceptional”. My understanding of the term “exceptional cases” and the architecture of the proposed scheme is that there will be civil legal services available as described in Part 1 of Schedule 1, subject to Parts 2 and 3, for cases which are in scope. There will also be civil legal services available for cases which do not fall within Schedule 1 but which are, as it were, exceptional. That is set out in Clause 9. I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm. I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about.
That said, the provisions we have here are quite substantive in their degree of direction and the extent to which the director can apply the convention jurisprudence as to which cases would fall within subsection (3). So there is a degree of certainty. Obviously, each case will depend on its merits, but at least there will be some indication of the kind of factors and the relevant jurisprudence that the director will take into account. As I have said, I certainly find that the concept of “the interests of justice”, undefined as it is, is probably too vague to be in the Bill without undermining the scope of the scheme that is being proposed.
I understood my noble and learned friend to say a moment ago that “exceptional” means no more than it is a case outside Schedule 1, not that it is exceptional in the class of cases. That is a very different concept. I had understood “exceptional” to be in a class of cases that are not covered by Schedule 1 and not in scope and that you would need to have an exceptional case in that class of cases. However, if “exceptional” means, as my noble and learned friend said—and no doubt he will think about it—that it is merely a case that is outside Schedule 1, that is a very different situation.
My Lords, I shall certainly think about it. Clearly, if it falls within scope, it falls within scope, whereas we have discussed some cases which would not necessarily fall within scope. We had a lengthy discussion on clinical negligence, which does not fall within scope but would nevertheless be an exceptional case—obviously as determined and defined in Clause 9.
My point is that a clinical negligence case, on what the noble and learned Lord said, as I understood it, would be exceptional. So that qualification is immediately fulfilled and then you are concerned only with the convention rights. However, any clinical negligence case would be exceptional.
No. When debating clinical negligence cases we agreed that they did not fall within Schedule 1. However, clinical negligence cases would be exceptional if they met the criteria set out in Clause 9. In particular I go back to the debate on the criteria which relate to the individual’s convention rights within the meaning of the Human Rights Act 1998. The noble Lord, Lord Pannick, said that this is a floor operation rather than a ceiling operation but, nevertheless, Article 6 of the European convention is an important threshold and, in that respect, is exceptional. I hope I have not made things less clear. The policy is to limit this to where a failure to accept cases and make an exceptional determination would breach an individual’s convention rights or any right to the provision of legal services enforceable under European Union law. That is the nature of the exceptional circumstances.
If we go any further we will probably tie ourselves up in knots. We almost got there when we were looking at clinical negligence cases in which the exceptional circumstances as defined here, with particular reference to convention rights, would apply.
My Lords, before the noble Lord, Lord Thomas of Gresford, replies to the debate, I hint to the Minister that he should listen very carefully both to what the noble and learned Lord, Lord Mackay, suggested and to what the noble Lord, Lord Thomas of Gresford, invited him to say about the expression “exceptional”. Can he also let us know—not in due course but reasonably quickly—some more details about how it is intended that Clause 9 will work and the kind of funding that will be available under it? He said those questions would be replied to in due course, but it is important before we pass Report in this case to know a bit more about the Government’s intentions in Clause 9.
My real point in getting to my feet now is that, though I may have missed what the Minister said, I do not think he answered my short query about whether the way that Clause 9 is drafted at the moment excludes any prospect of legal aid for initial advice and assistance. That is an important point in relation to the fact that that initial advice can stop things in their tracks at a much earlier stage and save the legal aid fund a lot of money.
My Lords, first, I indicated when replying to my noble and learned friend Lord Mackay of Clashfern that I certainly want to reflect on what he said. It would be wise to do so. On the question that the noble Lord raised, I think I replied but I can quite understand in the context of my reply that the noble Lord did not hear it. I now want to make sure that I get it right. My reply was to the effect that initial advice and assistance could in principle be granted under Clause 9, to the extent that to grant it would be necessary to avoid a breach of the individual’s rights, for example, under Article 6. That is perhaps not as wide as the noble Lord hoped, but in principle there could be circumstances where it would be available.
I am grateful.
My Lords, my noble and learned friend referred to guidance that would be given to the director in due course about how he approached his task. I would indeed expect that the criteria for what is exceptional would be published by the director as one of his first tasks. An application form for exceptional funding would no doubt have a block saying, “You will not get this funding unless it is exceptional in the following sense”, or some guidance like that. Accordingly, it would be quite possible to publish criteria as to what the director would consider to be in the interests of justice generally, but I defer to the expression that was used by the noble and learned Lord, Lord Mackay, about there being a real risk of injustice if legal aid is not granted. That seems an admirable way to approach it, and I will press that on my noble and learned friend in due course. For the moment, I beg leave to withdraw the amendment.
Amendment 91 withdrawn.
Amendments 91A to 92A not moved.
Clause 9 agreed.
Clause 10 : Qualifying for civil legal aid
93: Clause 10, page 7, line 23, leave out subsection (4)
My Lords, in the interests of life, liberty and the pursuit of nourishment, I will be uncharacteristically brief in moving these amendments which relate to Clause 10 and the qualifications for civil legal aid.
Amendment 93 seeks to delete subsection (4):
“In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which there is more than one description of service that could be provided for an individual, the individual qualifies under this Part for the service which in all the circumstances is the most appropriate having regard to the criteria”.
What that means and how significant it is escapes me. Perhaps in replying the noble Lord, Lord McNally, could amplify the meaning of it. In addition, another curious subsection states:
“The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”.
It may be a fact but it can hardly be a principle—but that may be me being pedantic again. I have already been rebuked by my noble friend Lord Bach for correcting his use of the word “decimate”. The noble Lord, Lord McNally, may wish to rebuke me in this context.
Amendment 95 is simply designed to ensure that, if regulations are made, draft regulations should be laid before and approved by an affirmative resolution in each House of Parliament. We have had this amendment moved in respect of other regulations. It seems appropriate in this case that we should follow that course. I beg to move.
My Lords, I would not dare to try to correct the noble Lord, Lord Beecham, on his English. I am still recovering from being corrected by the noble Lord, Lord Prescott, earlier in the Bill. I move in these circles with due caution.
I will address Amendment 95 first, which echoes the recommendation by the Delegated Powers and Regulatory Reform Committee to subject changes to the merits criteria to the affirmative resolution procedure. We have given careful consideration to what the committee said in its report about the procedure for the regulations under Clause 10(1)(b) and it is our intention to bring forward an amendment at a later stage to provide for regulations under Clause 10(1)(b) to generally be subject to the affirmative procedure. However, the amendment will also need to provide for a procedure along the lines of but not necessarily identical to that in Section 9(7) and (8) of the Access to Justice Act 1999 to allow for changes to be made quickly if necessary. With that explanation and assurance, I hope the noble Lord will not press his amendment.
Amendment 93 seeks to remove Clause 10(4) from the Bill. Clause 10(4) is based firmly on Section 8(4) of the Access to Justice Act 1999, which also contains an equivalent provision about the merits criteria. The funding code criteria made pursuant to Section 8 of the Access to Justice Act enshrine this principle. The purpose of Clause 10(4) is clear. It ensures that, where more than one level of service might be available, the merits criteria in the regulations under Clause 10 should be sure that the individual qualifies for the services which in all circumstances are the most appropriate having regard to the criteria. Often, one level of service will be most appropriate at the beginning of a case but the need of the applicant will change over time as the case progresses. Section 8(4) of the Access to Justice Act accounts for this.
The benefits of the provisions in Clause 10(4) are twofold. First, we can avoid unnecessary spending by ensuring that the appropriate level of service is funded. Secondly, applicants will benefit by receiving the level of service most appropriate to their needs. This is not a one-way street. There are likely to be instances where it would clearly be more appropriate for representation rather than help to be provided. The assessment will be an objective one, based on the criteria and all the circumstances of the individual case. In those circumstances, I hope the noble Lord will withdraw his amendments.
I am grateful to the noble Lord for confirming that changes will be made with respect to the regulation. I am happy to accept his explanation of what seemed beyond my limited intellectual grasp in that subsection. I beg leave to withdraw the amendment.
Amendment 93 withdrawn.
Amendments 94 and 95 not moved.
Clause 10 agreed.
House resumed. Committee to begin again not before 8.29 pm.