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Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Volume 753: debated on Wednesday 7 May 2014

Motion of Regret

Moved by

That this House regrets that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 make the duty of the Lord Chancellor to provide legal aid in judicial review cases dependent on the court granting permission to proceed (SI 2014/ 607).

Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee

My Lords, over the past 40 years politicians of all Governments have complained when they lost judicial reviews. However, when they calmed down they recognised that the principles created by the courts in this area of the law are,

“fundamental features of a constitutional democracy”.

I quote from De Smith’s Judicial Review, edited by the noble and learned Lord, Lord Woolf, Professor Jowell, and others. Lord Chancellors of the stature of the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, saw it as part of their responsibility to remind their ministerial colleagues of the importance and the political neutrality of judicial review. They understood that Ministers may be irritated by these cases while in government, but they welcome such controls when they lose power and move into opposition. The Lord Chancellor in this Administration, Chris Grayling, is by contrast a politician with a short-term mission. He wrote in the Telegraph last month that he is determined to prevent,

“judicial reviews, instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.

The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat. Legal aid is paid to a claimant’s lawyers only if the claimant satisfies a means test and shows that the claim has legal merit. Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. The Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration.

The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.

These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low—scandalously low—rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation. Nor is it any solace that the Lord Chancellor has discretion to make a payment; that applies only if the judicial review application is not dismissed and some of these applications will be dismissed because the case is now moot. In any event, nobody can proceed on the basis of a hope that the Lord Chancellor, in his discretion, may choose to make a payment. We have all seen recently that the discretionary “exceptional circumstances” category of funding for legal aid applies in theory but rarely, if ever, in practice.

The senior judiciary responded to the Lord Chancellor’s consultation on this matter and criticised the proposal that is now enacted in these regulations. It was concerned by what it described, rightly, as the “chilling effect” and judiciously advised that there was another much more fair and effective means of addressing any problem. The solution is that the court should be able to certify that legal aid should be refused if, in the opinion of the judge, the application for judicial review is totally without merit.

These regulations have the dubious distinction of being criticised by two parliamentary committees. Your Lordships’ Secondary Legislation Scrutiny Committee, in its 37th report, dated 27 March, drew the attention of the House specifically to these regulations. The committee was very critical of the uncertainty that the regulations will create regarding the criteria for payment and also of the inability of the Ministry of Justice to say how many cases a year are likely to be affected by the changes. The Joint Committee on Human Rights, in its 13th report, dated 30 April, concluded that the changes made by these regulations are not justified by the evidence. The Joint Committee added that, in the light of the significance of the restriction on rights of access to the courts, these changes should have been brought forward in primary legislation.

Noble Lords who took part in the debates during the passage of Legal Aid, Sentencing and Punishment of Offenders Act 2012—and there are many in the House tonight—will recall the repeated assurances that Ministers gave that the reduction in the scope of legal aid imposed by that legislation did not affect judicial review. It is ironic that the Lord Chancellor is now using the general powers conferred by that legislation to make regulations that, in practice, will severely restrict the availability of legal aid in judicial review cases. As the Joint Committee noted, there is a legislative vehicle that could and should have contained the changes made by these regulations. The Criminal Justice and Courts Bill currently before Parliament contains many significant proposals—many highly regrettable—about judicial review. Can the Minister please explain why the proposals in these regulations were not included in that Bill so that they could be properly scrutinised and, if appropriate, amended by this House and the other place?

I regret the content of these new regulations and I regret that this detrimental change to justice is being implemented by secondary legislation. I beg to move.

My Lords, I am a member of the Joint Committee on Human Rights and we are very grateful to the noble Lord, Lord Pannick, for initiating this debate. Our report, to which he has referred, and his speech say everything that I think could be said to explain the firm hostility to these proposals not only across the legal profession but across the committees of both Houses and the wider public. This will not inhibit people from saying the same thing again but I do not intend to be one of those; instead, I want to say something slightly different.

One thing that the Joint Committee on Human Rights referred to as a result of what is happening is the,

“conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.

We expressed the view that,

“the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice”,

and so on.

During the passage of the Constitutional Reform Bill in 2005, I was one of those who supported the abolition of the old Lord Chancellor system and the creation of a new one in which a politician who was not a lawyer could become Lord Chancellor and Secretary of State for Justice. In my reforming enthusiasm, it seemed that that was a sensible thing to do. I deplored the conservatism of those who thought that this was ridiculous and that there was no reason why a non-lawyer—a lay person—could not be the Secretary of State for Justice.

I thought about my old boss Roy Jenkins, who was not a lawyer, and it seemed to me that he would have made an admirable Lord Chancellor because, although he was not a lawyer, he understood the rule of law. It was in his DNA—in his bloodstream. I could not imagine Lord Jenkins of Hillhead at any stage in his career becoming a populist Secretary of State for Justice who would forget about the importance of the independence of the judiciary, its role and the role of the independent legal profession, and the importance of judicial review. That was why, at that time, I supported the changes.

I am sorry to say that the previous Lord Chancellor, the right honourable Jack Straw, and the present Lord Chancellor have made me reconsider whether my enthusiasm was sensible. The previous Lord Chancellor, although a barrister, had managed in his period of office to behave in a way that I thought no Lord Chancellor would in flouting the judgment of the European Court of Human Rights and in going to Strasbourg to remonstrate with the president of that court about overreach and intrusion into the sovereignty of Parliament and so on. I do not believe that Lord Havers, Lord Hailsham, the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, or any of the traditional Lord Chancellors would have behaved in that way. That shows that you can be a lawyer and still not understand the rule of law. I know that what I have just said may be controversial on the Labour Benches but that is my view, having served him as an unpaid adviser for some 18 fruitless months.

However, the present Lord Chancellor is in a class of his own, because he is entirely miscast as Lord Chancellor. He would be perfectly cast in “House of Cards”. He would be an ideal person in that sort of role because he is a very intelligent, extremely charming, very effective politician. However, I am sorry to say that having seen him give evidence to the Joint Committee and generally, and seeing what he says in newspapers, I do not think he understands the rule of law. I do not think that you have to be a lawyer to do that but it might help if you have been part of that tradition. His legacy, I am sorry to say, is going to be bleak. People will look back on this period and the coalition Government and they will say with all the high statements made by both parties to the coalition about the rule of law—and for that matter the Opposition as well—extreme damage has been done to it.

The best judges of judicial review and costs are the judges. The judges invented judicial review. It was the judges who from 1976 developed the rules about judicial review. No Government would have done that. The judges did it because they realised that they should no longer be more executive than the Executive and that they needed to call Ministers and public bodies to account. It is one of the great glories of my life’s experience to have seen the flowering of judicial review. The present Minister of Justice thinks that judicial review is being abused by a lot of left-wing mischievous troublemakers who are running free and should somehow be curtailed. There is no basis for that allegation in my experience. If there were, you could be jolly sure that the judges themselves would criticise applicants who abused the process in that way. The Minister then goes on to suggest that this kind of change in legal aid will diminish mischievous and vexatious applications for judicial review.

All I can say about that is the best safeguards of the process are the judges and in this country, unlike some places, you have to get permission from the court before you can apply for judicial review. That is not an easy step. It often takes a great deal of skill to draft an application for judicial review. Lawyers have to be persuaded to do so, especially if they are not going to be reasonably paid for their services. Again and again judges will criticise applicants, as they will respondents, if they feel that they are misusing the process. I do not think that it is the business of a Minister to interfere with the discretion of judges in controlling the judicial review that they have developed.

I do not know any case, and certainly the present Lord Chancellor has not pointed to a single case, in which judges have failed to do their job properly by curbing the misuse of judicial review. I do not know a single example. He cannot give any; the Joint Committee on Human Rights asked him about it, and he was not able to provide any. Therefore it is an assault on the rule of law in a fundamental sense. It is not only about access to justice or equality of arms—that is to say, ensuring that the citizen and the state are on equal terms when it comes to judicial review. It is also about a complete lack of confidence in the ability of the judiciary to do its job properly. As a loyal supporter of the coalition, I feel very depressed at having to say what I have just said, but I am afraid that I have to say it, and I hope that whoever wins the next election chooses a Lord Chancellor and Minister of Justice who understands, as our Attorney-General now understands, what the rule of law implies. For all of those reasons I thoroughly support everything that the noble Lord, Lord Pannick, has said.

I support the Motion. I am deeply impressed by the noble Lord, Lord Pannick, and the whole House will be indebted to him and the noble Lord, Lord Lester. Together they have adduced a withering criticism of the notions, buttressed by the noble Lord, Lord Lester. The Government are entirely mistaken in what they intend to do. They are determined to whittle away the availability of legal aid. What they intend in this regard provides another example of what they have in mind. It may not be as significant as other measures but none the less it is important in its own right. The intention is condemned, as has been said, by the Bar Council, the Law Society and by lawyers who practise in the field, without exception. Even the noble Lord who will reply to the debate must be concerned about what the Government intend.

Lawyers do not earn in this field—they earn insignificant sums. They do it because the law intends that they should, and they abide by that intention. Moreover, legal aid may be denied after the lawyer has taken on the case. In other words, the court can decide after the event. I wonder whether that is fair. Is it just? Should it be done? Judicial review, as has been said, is an important remedy. It enables the court to determine whether the Executive have exceeded their powers in law. That should not be disregarded. Of course, this measure should not be viewed in isolation. The Government have already vent their opposition to judicial review as we know it, having decided that time limits that were previously prescribed should be curtailed, thereby enabling the Executive to restrict access to the courts. Is that right? Should it be tolerated for one moment?

In none of the recent situations have the Government given consideration to the impact of the changes that they seek to implement. Indeed, one would have thought that, having proper regard to the significance of access to justice, they would at least pause before embarking on further destructive changes. According to the Secondary Legislation Scrutiny Committee, to which reference has already been made, the Government’s intent is to procure savings that they estimate as some £1.3 million from the legal aid budget. The committee believes that, in fact, these costs will simply transfer costs to another area. Indeed, that is already happening. Clearly, what should be considered is the entirety of the Government’s expenditure. There should be a proper, measurable analysis of either the savings to be incurred or the benefits intended as far as the public is concerned. Neither has happened, and the lacuna is absolutely woeful.

The Government argue that their changes will result in 69% of legal aid being removed. Is that not extremely worrying? Are the Government not concerned about this? Is the Minister, who is himself a lawyer, also unconcerned? Why should the availability of legal aid be decided on a discretion which is exercised after the event? If in fact only a few cases each year—the estimate is some 751 cases—would result in legal aid being removed, why bother? Why should lawyers representing extremely vulnerable people be victimised? Why should they have to wait, as the Government propose, until later? Where else in law is anything like this proposed? In my view this represents a backward step, and the Government should be thoroughly ashamed of introducing it.

My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.

The “wholly without merit” test is not a test of whether a case has fallen on one side or the other of the balance. Every lawyer in this House—even the very distinguished lawyers who preceded me—has made incorrect calls in cases. We all lose cases. That is one of the reasons we are there. However, what we need to deal with are not those cases where the lawyer makes the wrong call, but the cases where the lawyer and the litigant should never have made the call at all.

I should tell your Lordships that there is something called the judicial templates, which are amended—very helpfully—on a regular basis, and form part of what is called the Administrative Court Digest. Judges are not bound to use the templates—but they are there to be helpful and they are in electronic form, so they are often used. In the templates, there is a reminder to judges that they may certify that a case is “wholly without merit”. In other words, judges know that this is an important test and already they know that it has consequences, irrespective of legal aid. For example, if a judge certifies an immigration case as being “wholly without merit”, it means now, as a result of some changes that have taken place, that the applicant cannot renew his or her application orally before the full court. It means, in many cases, that they are put on an aircraft to a place they do not wish to visit, within a day or two. So the “wholly without merit” test already has consequences and is well understood by the judge. I suggest to my noble friend the Minister that that is the practical and sensible way of dealing with a problem that is correctly perceived and requires a solution.

In addition, there are cases that at first seem meritless and which, under these regulations, would not find their way to the Administrative Court because lawyers would not take them on. However, one of the challenges to somebody who is going through that trolley load of 12 sets of files is spotting the case in which something really has gone wrong. Often it is spotted as the result of excellent legal argument, but in many cases, it is not because the legal argument is good—often the argument is actually rather poor—but because the judge has the relevant experience and compares that case with other cases that he or she has seen over the years. If those cases are not allowed to filter through with permission to apply for judicial review, great injustice will be done.

As I thought about today’s debate, I reflected on something else. The last time I dealt with paper applications in the Administrative Court, in the course of a week I dealt with at least four cases in which the Home Office had failed even to reply to correspondence from the claimant. Now, I have every sympathy for the volume problem that Home Office lawyers and the Treasury Solicitor face. Nevertheless, it is a fact that if answers are not given to what are often legitimate questions, the individual concerned might not be able to get a job because of their immigration status; they might not be able to study or continue to study because of their immigration status; and they may not be able even to remain within the country.

In the cases I am referring to—they are but examples, I am afraid—the only way the individual was able to obtain a response from the Home Office was by bringing a claim for judicial review. It should not be so but I am afraid that it is a fact; it is unequivocally so and I have seen it in the past three months on the occasions to which I referred.

Furthermore, in a number of cases, especially those kinds of cases, what happens in the end is that the Treasury Solicitor reaches an agreement with the claimant’s lawyers that the claim should be withdrawn so that the case can be revisited and a fresh decision made; in other words, a claim for judicial review can lead not only to a response being obtained from the Home Office or another government department but to a just resolution of the action and of the interests of the individual. I am afraid that some of those cases will be excluded if these regulations continue in their present form.

On practical grounds, I suggest to the Minister that appropriate savings to the legal aid budget could be effected by using the “wholly without merit” test, and that, if we adopted that approach as compared with the regulations, we would have a solution that would be fair and judicious—and, of course, would have the advantage of being judicial, too.

My Lords, I support the Motion of Regret tabled by the noble Lord, Lord Pannick. I congratulate him on securing this debate on a subject of such fundamental importance. I will leave the legal arguments to the noble Lords who understand them. I want to focus on the impact of these regulations on the more vulnerable in our society.

The Lord Chancellor acknowledges that judicial review is an important tool, yet he has railed against its use by campaigners, declaring, in an article in the Daily Mail last September:

“While charities inundate Westminster with campaign material, they also target the legal system as a way of trying to get their policies accepted. One essential part of the campaigner’s armoury is the judicial review, through which it is possible for them to challenge decisions of government and public bodies in the courts”.

Only three months ago the slight was repeated in the Government’s response to their proposals for further reform of judicial review, which said that,

“too often cases are pursued as a campaigning tool”.

Let me declare an interest: I have been a campaigner all my life and I am fiercely proud of it. I believe that my efforts have enabled disabled people to gain their rights to dignity and equality, which for so long had been denied them. I think all of your Lordships would celebrate this. Where would we be without campaigns to right injustices? To take only one example, where would we be without the crusading spirit of the noble Baroness, Lady Lawrence?

What lies behind many of the highest-profile campaigns? It is injustice. No matter how many times the Lord Chancellor repeats himself, judicial review is not about campaigning; it is about people standing up to public bodies when they get it just plain wrong. That is exactly why we need judicial review and why legal aid is so vital to its effectiveness. It is about every citizen’s right, not just those with deep pockets, to challenge the state if it behaves unlawfully.

Those who may be most affected—the disadvantaged in our society—cannot do that alone. They rely on lawyers to represent them. These regulations will make it all but impossible for lawyers to take on their cases. That is a denial of justice. It undermines the rule of law. These regulations have been severely criticised by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights, not only for what the regulations do but for the way they have been introduced. To deny Parliament the opportunity for full debate on an issue of such importance is surely an abuse of our democratic principles.

If there is evidence of judicial review abuses—which the JCHR did not accept—the Government should address those specifically. It is simply wrong to punish all those who use it legitimately in an attempt to prevent the few who might not. As noble Lords will know, my lifelong passion has been championing the cause of independent living. In just the past few months, we have had two landmark judgments. Both came about through judicial review.

In December 2013, the Court of Appeal decided that the Minister for Disabled People had not properly considered the impact that closure of the Independent Living Fund would have on severely disabled people. In March, the Supreme Court ruled that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act.

We cannot be confident that such cases will continue to come before the courts if these regulations are in place. For this reason alone, I wholeheartedly support the Motion.

My Lords, it is always a privilege to follow the noble Baroness, Lady Campbell. She is an outstanding example to us all and it is a very humbling experience to follow her.

I speak, as she did, as a non-lawyer. I think it is good that non-lawyers should take part in a debate such as this. I was very glad that the noble and learned Baroness, Lady Butler-Sloss, referred to Magna Carta. I spent much of this afternoon discussing with people involved in it the preparation for our celebration of Magna Carta next year. I hope that next year we will underline in every home and every school in the land the fundamental importance of the rule of law. I would like to give every secondary school pupil in this country a copy of Lord Bingham’s splendid book on the rule of law.

It is all very well to say these things and to pay lip service to them. What we have to do is to pay more than lip service because what is being proposed by the Government is inimical to the rule of law as I understand it. Unlike the noble Lord, Lord Lester of Herne Hill, and the noble and learned Baroness, Lady Butler-Sloss, I was not happy about the change in the role of the Lord Chancellor, and I said so at the time. I feel mildly vindicated. I do not, in any sense, want to indulge in any sort of personal attack on any individual, but rather to talk briefly about the principle of the thing. I understand how government Ministers and those who run public bodies and local authorities can get very exasperated and impatient because of inconvenient challenges to their decisions. We are all human, and we all feel exasperated on occasion. But exasperation is not a reason for doing something that is not necessarily contrary to the rule of law but makes it more difficult for people to enjoy the benefits of the rule of law.

I may not be a lawyer, but I have spent almost 44 years now—when next month comes—in the high court of Parliament, in one Chamber or another. I know that what the noble Baroness, Lady Campbell of Surbiton, said a few moments ago is true: all the way up and down this land, there are men and women who need the protection of the rule of law. Yes, of course, there are those who misuse things; of course, there are people who behave vexatiously—we know the term and we know the people. Those of us who have had parliamentary constituencies know the obsessives who come, week in, week out, month in, month out. But hard cases make bad law, and decisions of this sort make bad law. I was talking to a colleague earlier this evening and could not help but think that he made an extremely good point—he is one of your Lordships who has great experience in international finance. He said, “I don’t know any of the major companies with which I am involved who will invest in a country where the Government of the day cannot be defeated in the courts”. It was a very perceptive remark. We should be proud that in our country government can be defeated in the courts; the decisions of local authorities and public bodies can be defeated in the courts. If we are going to make it more difficult to get legal aid for judicial reviews, we have to do it by way of substantive legislation, not secondary legislation. If there was ever anything that was less suited to what we call Henry VIII actions, it is this. I have enormous personal regard for the present Lord Chancellor—I think that he is a highly accomplished politician—but I think that he has got it wrong. I hope that my noble friend who will reply to this debate will be able to convey to the Lord Chancellor the unease in all parts of your Lordships’ House. It is unease that is shared by people in all parties and in none, who have no party-political axe to grind on this occasion but who just believe that, on occasions, it is right to allow—or to risk, should I say?—the exasperated getting their way to some degree.

My noble friend Lord Carlile of Berriew referred to the trolleys of judicial review cases that he and other judges have to look at and readily acknowledged that many of those who seek judicial review really do not have much of a leg to stand on, but he also pointed out that in some surprising cases they do. Really, one can adapt that very well known saying that it is far better that 10 guilty men go free than the one innocent one is incarcerated to this subject as well: it is far better that there be 10 vexatious nuisances than that something that is truly damaging gets through.

Therefore, as a non-lawyer, I support the lawyers who have spoken this evening. I am grateful to the noble Lord, Lord Pannick, for the manner in which he introduced the debate—briefly, concisely and extremely persuasively—and I was also glad to be personally present to witness the repentance of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Baroness when they admitted that they had perhaps got it wrong. On this occasion, it is the Lord Chancellor who has got it wrong; let him put it right.

My Lords, even more than usual, thanks are owed to the noble Lord, Lord Pannick, for tabling this regret Motion, because these regulations are laid, as we have heard, under Section 2 of LASPO, which requires only a negative statutory instrument. This allows for the implementation of the regulation before Parliament has any opportunity to debate it. Indeed, Parliament would have had no such opportunity if not for the noble Lord himself. All those with an interest in the rule of law and access to justice—and that should be all of us—once again owe a debt of gratitude to the noble Lord.

Other experts argue with some force that the appropriate way for Her Majesty’s Government legitimately to bring forward such a major reform—with the likely consequence that in practice many poor citizens will not be able to exercise every citizen’s right to question executive power—is by primary legislation. If this, however, is asking too much, these experts argue that the regulations should have been laid under Section 9 of LASPO, which obliges the Government to get parliamentary approval before the regulation comes into place. Thankfully we are having a debate, and I make a few points in support of the Motion of the noble Lord, Lord Pannick.

I perhaps ought to declare an interest. I am probably the only speaker to take part in this debate who has been on the wrong side of a judicial review. The court found against the decision I had taken. However, that encourages me even more to make the points I intend to make.

In his initial attack on judicial review, the Lord Chancellor implied in rather a general, throwaway manner that judicial review was somehow becoming the tool of left-wing pressure groups egged on by left-wing lawyers. This sort of talk may of course satisfy the Daily Telegraph on a bad day, or the Daily Mail on any day, but it does not accord with reality. Judicial review is supposed to be open to all citizens who want to challenge the decisions of the executive: it should be for all of us. Examples of citizens, rich and poor alike, taking this course are legion. For me, a current example is close to home, and I mention it briefly. The self-described descendants of King Richard III, who obtained a judicial review of the Lord Chancellor’s decision, cannot, I suggest, be described as left-wing activists whose purpose is to destroy civilisation as we know it.

Criticism can and must be made of the Lord Chancellor himself. He often gives the impression, I am afraid, that he does not always appreciate important principles that lie at the heart of our legal system, or that he does not have much understanding of how it works in practice. Both are important: the principles, and how they work in practice. It is unfair—on balance—to say that it is because he is not a lawyer. There are many non-lawyers who have a deep understanding of how precious and important our legal system is. However, I make the point that all four of the Lord Chancellor’s current crop of junior Ministers are distinguished lawyers. One in particular is distinguished—I will not embarrass him by naming him tonight but I think he knows who he is. I ask this question of that Minister: is it not time that he and his lawyer colleagues, who, just as much as the Lord Chancellor, must have the interests of justice as their prime obligation, girded up their loins, if I may use that expression, and together pointed out to their boss that many of the changes being made in his name seem to have scant concern for the concept of the rule of law, or access to justice, or how these important principles are put into practice in a system that I hope is still—but only just—the envy of the world?

The regulations we are debating are, I argue, a good example. Everyone who has looked at the regulations comes to the irresistible conclusion that for the LAA not to be allowed to pay any legal aid in a case where permission is refused and for the Lord Chancellor to have an unclear and uncertain discretion if a case never reaches the permission stage will have a chilling effect. It will mean that lawyers will not be able to take judicial review cases where the claimant cannot afford to pay. The result is that a system of law which is open to all will inevitably have become closed to many, and in particular to those who most need the protection of judicial review against the power of the Executive.

As the Bar Council put it in paragraph 9 of its very well argued briefing note:

“A fundamental concern is that a particular group only (namely, legally aided claimants) would be subject to these provisions. Public authorities would face no particular adverse consequences when they resisted applications for permission for no good reason. The position of privately funded claimants would remain unchanged. Treating legally aided claimants differently would be unfair. It does not happen in relation to other areas of law. It would create an unprecedented imbalance between the parties to litigation and will lead to inequality of arms”.

That is a powerful statement. When the Minister comes to reply, will he say whether he agrees with it?

Of course, the point has been made that there are already filters in place: a merits test before legal aid can be granted and, in every case, there is a permission stage. As the same note from the Bar Council says in paragraph 11,

“the existence of the filter amply serves its intended purpose. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not ‘rebalance’ judicial review; rather, it risks fatally undermining it”.

If one looks back to the passage of the LASPO Act through Parliament, the Government promised two safeguards. One was that exceptional cases would be a safety net for the area of social welfare law that was being taken out of scope. In its first year of operation, the exceptional cases point has turned out to be a miserable failure. The second safeguard—the noble Lord, Lord Pannick, spoke of this—was of course to be the continuation of legal aid for judicial review. As the Government argued in their own original Proposals for the Reform of Legal Aid in England and Wales in November 2010, judicial review represents,

“a crucial way of ensuring that state power is exercised responsibly”.

Throughout the lengthy debates in this House and in the other place, Ministers would use the existence of legal aid judicial review as a reason why it was safe to remove legal aid from social welfare law. Yet barely one year after Part 1 of that Act has come into force, the Government are introducing a regulation that is bound to have the effect of making it very unlikely that a poor or disabled person, or a citizen who needs legal aid, will be able to get justice by way of judicial review. The risk of not getting permission, and thus not getting any costs, is so great that providers simply cannot or will not be able to do it.

To my mind, this represents a particularly low point for the Government. They have got controversial legislation through Parliament on a false basis and further demeaned our legal system. Where will it end?

My Lords, I cannot compete with the expertise of other speakers before me, but I declare a couple of interests. First, I am a regulator of the profession—but not its representative. Secondly, despite what the noble Lord, Lord Bach, said, I have been involved in several judicial reviews and have won three and lost one, albeit ably represented by the noble Lord, Lord Pannick, with the noble Lord, Lord Lester, on the other side. I am in the middle of yet another. Bitter experience though it was, this does not deter me from supporting the noble Lord, Lord Pannick, in asking the Government to think again.

Why do we spend so much time in this House attempting to perfect the laws that come to us from the other place and our own? The ultimate way of enforcing them and making sure that they are good law is by judicial review—or at least the threat of judicial review. Many public bodies which make important decisions do so acting in the shadow of judicial review, expecting it to come. Knowing this makes them take much more care over how they apply our law. This House and the other House will be the losers if judicial review is restricted.

I tweeted this morning that we spent £9 billion on the Iraq war, spent £11 billion on the Olympics and may well spend £50 billion or more on HS2. Our legal system stands at risk for the sake of £200 million, which, in the global way of looking at things, is very little. I know that the Law Society and the Bar Council have put forward to the Ministry other ways of saving that money.

How will this particular reign of the current Lord Chancellor be remembered in the history books? It will be remembered as one of impending chaos. We now have a situation where, because of the attempts to save money, important fraud cases collapse because no barrister will work for the sum offered and the family courts are clogged up with emotional litigants in person thereby causing judges to have to run cases in a way that they really should not have to. Speaking as a regulator, I can say that altruistic young people, very often from black and ethnic minority backgrounds, are being deterred from taking up law as a profession because criminal law and family law will no longer offer them even the most modest of incomes with which to start out, bearing in mind that they have debts from university. I could not in all honesty encourage them to take up the profession right now. That means that 10 or 20 years down the line, there will be yet more complaints about the lack of social mobility and diversity in the profession. There will continue to be calls for more ethnic minority and female judges, and they will have been cut off right now because of these attempts—well meaning, I suppose—to save £200 million.

Why is this coming about? If one goes back a bit, the blame has to lie with the former Prime Minister Tony Blair, who made a constitutional change for which we are now paying. When I was a law student, I learned that the British constitution was never roughly pushed around; it simply inched along, changing a bit here and there, in response to circumstances. The position, however, of the Lord Chancellor was rather brutally changed a few years ago. True, the old-style Lord Chancellor offended against the separation of powers. He was a Speaker, he was a member of the Cabinet and he was a judge. But look where we are now. Our system of justice lacks a champion. The rule of law needs someone to look after it who is not looking for political preferment, looking to the next job or looking to save money and thereby garner acclaim. The system of justice needs an old-style champion complete with curly wig, stockings and all the rest of it, because that symbolised someone who was above it all, who had reached the top of the tree and whose only concern was access to justice and the smooth running of the system.

I am afraid that the current Ministry of Justice, so-called, might one day be called by the history books the “Ministry of Injustice”. What is going on is not right and I think that everyone in this Chamber, no matter what side they are sitting on, knows that very well. I support the noble Lord, Lord Pannick, and I congratulate him. I call upon the Ministry to think again.

My Lords, we in this House owe a great deal to the noble Lord, Lord Pannick, for his untiring attempts to preserve access to justice for vulnerable and powerless people—the legally aided claimants. I rise in support. I wanted to ensure that we had on record the concerns of some of the excellent people who work hard to get access to justice for powerless people, and I felt very privileged to hear the contribution from the noble Baroness, Lady Campbell of Surbiton, who is one of the stars in that firmament. Liberty does a great deal of this sort of work—I declare an interest as a trustee of the Civil Liberties Trust—but Liberty says that from its experience,

“the prospect of irrecoverable costs will place an unsustainable burden on claimant lawyers, making it simply too risky to pursue legal aid claims”.

I also want to mention young legal aid lawyers. Personally, and I am sure that other noble Lords will agree with me, I think we should be grateful that there is an organisation called Young Legal Aid Lawyers, and one wonders what they live on. The organisation has written to me about its work on legal aid immigration cases and the fear that the firms that these lawyers work for, in spite of their commitment to social justice, just cannot afford the risk of taking on some of these cases, even when they feel deeply that an injustice has taken place.

The Howard League for Penal Reform is extremely concerned about the effect of this measure on vulnerable people, including serving prisoners and those leaving prison. The Howard League referred me to the 2009 case of G, regarding a young person in trouble who was sleeping rough in a car. Through the Howard League he got a solicitor who brought judicial review proceedings about the responsibility to house him. Eventually the case reached the House of Lords where the noble and learned Baroness, Lady Hale, supported by the noble and learned Lord, Lord Hope, came out with a judgment that has resulted in a profound change in the way in which homeless young people are dealt with by local authorities. That one case has had a substantial effect on the lives of many children and saved a great deal of money.

Other judicial review cases have profoundly affected and improved the treatment of vulnerable prisoners—for example, a successful judicial review challenge with regard to the failure to transfer a prisoner with mental health problems from prison to a secure hospital for treatment; a successful judicial review challenge on behalf of a severely disabled prisoner in relation to the prison authorities’ failure to provide him with a motorised wheelchair and allocate him to an adapted disabled cell; a successful judicial review claim on behalf of a female prisoner with regard to the lack of disabled facilities in women’s open prisons; a successful judicial review on behalf of a prisoner with learning disabilities relating to the prison authorities’ failure to adapt offending behaviour programmes; and a successful judicial review challenge on behalf of a prisoner to stop prison authorities from reading his legal mail.

Those are all important matters that relate to the just treatment of vulnerable individuals and those who face discrimination. They are decisions that change the way in which things are done so that prisoners with learning disabilities can do offending behaviour programmes and maybe get parole, prisoners with serious mental health problems go to hospital and get treated and disabled prisoners are treated with respect for their human dignity. Does the Minister not regret just slightly that these sorts of developments will become more rare? Will he explain what he actually has against people such as those who have been described during this debate getting the wrongs that are done to them righted?

My Lords, we should be grateful to the members of the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights for their two excellent reports; and, of course, to the noble Lord, Lord Pannick, for securing this debate. Parliament ought to be vigilant for the liberties of the people. The committees and the noble Lord have indeed been so.

There are constitutional principles at stake in these regulations of bedrock importance: the principle that effective remedy should be available against arbitrary government and the principle that there should be equality under the law. Indeed, it is the rule of law itself which is in question. The law should be for the convenience of the people and not their governors. It is essential, therefore, that remedy should be available that is practical for an aggrieved citizen to seek, and that is available regardless of his personal means, against a public body that conducts itself in a manner that is unlawful, procedurally incorrect, incompetent, oppressive or unreasonable. If judicial review is not available to enable a challenge to wrongful decisions by the state or its agencies, we move away from a liberal constitution and towards executive absolutism.

Noble and learned Lords have explained in exactly what detailed respects these regulations are so offensive and how they would do their damage in practice. I pay tribute to them as I do to the range of admirable organisations and individuals who have made representations to us. It is extraordinary that we should be asked to rely on the funding of remedy against bad government at the discretion of the same Government who are themselves being impugned.

If it is unsure that legal aid will be available for the preparation of meritorious cases, then the freedom to seek judicial review is no more than the proverbial freedom of the poor man to dine at the Ritz. If a significant number of applications will not, under these regulations, be able to proceed, we lose important opportunities for the clarification of the law and for the improvement of public administration that the pressure of judicial review brings about.

Are these regulations really designed to save money? The Explanatory Memorandum asks us to accept that they are, and says that the primary objective of the Government in bringing in these regulations is to bear down on the overall cost of legal aid. I do not believe it. The Ministry of Justice’s estimate of how much might be saved is in the range, as the noble Lord, Lord Carlile of Berriew, mentioned, of between £1 million and £3 million. That is an extraordinarily vague assessment. We are also told by the department that somewhere between 20% and 69% of applications, if one goes by recent experience, would no longer receive legal aid. Again, the vagueness of that range—between 20% and 69% of cases—is horrifying. It would seem that the department has not done its homework and, certainly, that it has no clue as to how much it might be going to save. That is before we consider what would happen to net costs. There can be little doubt that the costs of the changes brought in by these regulations would be shunted elsewhere and would certainly not, in the end, be avoided.

Nor has the department been able to make clear how the payments system will work. Reasonably enough, if solicitors and advocates cannot foresee with any confidence that they will be paid, they will not be willing to take on cases. This is a shoddy and improper way in which to legislate. I also believe that the generality of citizens of this country, if apprised of the significance of the issues at stake, will be more than happy to pay whatever taxes it takes to pay for a proper system of judicial review.

Why, then, have the Government brought in these regulations? Ministers want to flick away a nuisance—to flick away irritants and inconveniences. They want to reduce the scope of those who presume to seek to frustrate executive power. The Lord Chancellor, Mr Grayling, wrote an article in the Daily Telegraph recently in which he made it clear that he finds the activities of pressure groups tiresome, and in particular regards their propensity to seek judicial review as an abuse of the system. We heard the noble Baroness, Lady Campbell of Surbiton, describe the significance of judicial review in her own tireless campaigning for the rights of disabled people. If the Lord Chancellor finds that tiresome, the rest of us find it entirely admirable. We are grateful to her and to the legal system that has permitted her and others who campaign as she does to achieve the advances in justice and in our society that have come about.

The Explanatory Memorandum says in paragraph 7.6:

“When considering cases the Lord Chancellor will look at the circumstances of each individual case”,

that is, when using his individual discretion. This Lord Chancellor is not a judge but a politician, and a famously combative one. He is a politician to the tips of his knuckledusters. It will be difficult for those who have the responsibility of administering the Legal Aid Agency to proceed with the scrupulous impartiality which I do not at all doubt they want to use as they go about their work. In the nature of their accountability, they cannot ignore the strongly held and assertively articulated views of the Lord Chancellor on the rights and wrongs of certain sorts of application for judicial review.

We cannot, therefore, be confident that an application that is just and in the public interest, but which may be politically inconvenient, would surely receive legal aid. The coalition parties profess to believe in freedom, but in this regard freedom is much safer in the hands of judges, who we know are politically neutral. Let them act as the filter and determine whether a case is totally without merit or meritorious. Let the judges do that, not politicians.

Montesquieu praised the British constitution for its checks and balances, notable among which was an independent judiciary. In the past, Parliament also acted as one of those checks on the Executive. Parliament restrained ministerial activism—the ministerial activism that now it all too routinely underwrites. In the past, convention inhibited Ministers from excessive legislative activism. However, we have now reached the stage in our politics at which every ambitious politician wants his 15 minutes of ministerial power during which he will make his mark, principally by legislating. Three-line Whips are indiscriminately applied to every item of government business. As we all know, one consequence of that is that we have had a huge increase in legislative activity. We have an excess of it, and as we know, too much of it is poorly drafted, poorly considered and, I must say, poorly scrutinised in Parliament, with the result that there is much to do when we seek to weed out the ill effects of badly prepared legislation.

As the scope and the pretensions of government have increased through the past 100 years, as the arm of the state has become longer in its reach and more pervasive, so the judges have developed judicial review. I applaud them for that. More than ever, it is necessary in our political culture that we should have a strong and reliable system of judicial review. We have a state of affairs now in which the politicians who find themselves in office, as a result of the vagaries of elections and of political patronage, feel an almost total entitlement to do what they will. They feel that they have carte blanche to do whatever they fancy, using the machinery of power, a majority in Parliament and a whipped vote.

Too many of these decisions are bad decisions, although, as Mr Grayling said in his article in the Daily Telegraph, these are properly taken decisions. Perhaps they are, but they can still be very bad ones. We saw at the outset of this Parliament how the coalition parties felt themselves entitled to rig the constitution in their respective political interests through the Parliamentary Voting System and Constituencies Act. We saw a little later how, notwithstanding what they had told the electorate, being in office they felt entitled to turn the National Health Service upside down and inside out. Now, through these regulations, they seek to curtail the freedom of the little man to have his remedy against the abuse of state power. This is executive arrogance and bullying.

There should be no financial impediment to judicial review in suitable cases. The system that we have had has done much to mitigate bad government. These regulations are illiberal and indefensible.

My Lords, once again we are debating matters concerning legal aid and, once again, almost universally around your Lordships’ House, there is criticism of the Government—tellingly, from experienced, distinguished lawyers and, perhaps even more tellingly, from non-lawyers. Those of us who have heard from the noble Baroness, Lady Campbell, with her particularly powerful and moving speech, and the noble Lord, Lord Cormack, who has consistently addressed the sort of concerns that he voiced tonight, will understand the depth of feeling that the Government’s proposals have aroused. It is striking also that, once again, not a single voice has been heard in support of the Government. The noble Lord the Minister has been given his brief and he will undoubtedly, in his usual charming and skilful way, discharge it capably, but he will do entirely without legal or political aid. That is some commentary on how these matters are viewed.

This set of regulations is but one of a series intended to restrict access to judicial review, especially for those with limited financial resources. The ostensible justification, as we have heard, is to save public money. However, as we have also heard, the actual savings are likely to be minimal—£1 million to £3 million—just as they were from the changes to prison law and in respect of compensation for miscarriages of justice. Last week it emerged that unpaid fines have reached £250 million—more than enough to fund legal aid in these contentious areas and others for several years. It is not being cynical to suggest that we are seeing the gradual demolition of judicial review on the instalment plan. In the next Session we will have the dubious pleasure of debating yet another of the Lord Chancellor’s lethal legal cocktails: the Criminal Justice and Courts Bill, which, among other things, seeks radically to transform the approach to judicial review in the highly controversial area of planning. A Government who purport to want to reduce the role of the state seem uncommonly keen to make it more difficult to challenge the state’s decisions, or those of other public agencies.

The late and much lamented Lord Bingham summarised the role of the judiciary and of judicial review in chapter 6 of his seminal work The Rule of Law, to which the noble Lord, Lord Cormack, referred. In it, he said:

“But in properly exercising judicial power to hold ministers, officials and public bodies to account, the judges usurp no authority. They exercise a constitutional power which the rule of law requires that they should exercise”.

He added tellingly:

“This does not of course endear them to those whose decisions are successfully challenged. Least of all does it endear them when the decision is a high-profile decision of … the government of the day”.

It is in that context that it falls to us to consider these regulations. They have, as we have heard, attracted severe criticism from the Secondary Legislation Scrutiny Committee in its 37th report published on 27 March. I note in parenthesis that the regulations were laid on 14 March and came into effect on 22 April, so that Parliament had virtually no time to consider them or the committee’s report before they became law. This is a matter which the Government and the House should perhaps look into, and the committee itself drew attention to that point in paragraph 15 of its report.

However, the position in relation to the Joint Committee on Human Rights is, if anything, even worse. Its report was published only a week ago and is equally critical in terms of both substance and process, going so far as to recommend that the regulations be withdrawn and be made the subject of primary legislation by tabling amendments to the Criminal Justice and Courts Bill, as advocated tonight by the noble Lords, Lord Pannick and Lord Cormack. Will the Government accept this proposal, and if not, why not? There is no shortage of available parliamentary time, as our extended recesses demonstrate.

The Secondary Legislation Scrutiny Committee’s report raises a series of concerns, many of them identified as long ago as September 2013 in a special edition of the journal Judicial Review, of which the noble and learned Lord, Lord Woolf, who is not in his place tonight, is a consulting editor, drawing on responses to the Government’s consultation on—in a wonderfully Orwellian phrase—“Transforming Legal Aid”.

What answers do the Government have to the questions posed by the committee on the impact of the changes on the payment system, the number of cases which would engender discretionary payments, and the issue of cost-shifting from the legal aid budget to other areas? Has the Ministry of Justice met the demand of the committee to clarify,

“exactly what work will, and will not, be paid for and how the Legal Aid Agency will exercise its discretion over payment”?

Your Lordships will bear in mind the vestigial number of cases in which the Legal Aid Agency’s discretion has been exercised in favour of claimants under the exceptional funding process. In that context, the committee referred to the circularity of the process by which the agency would review a decision on receiving payment, with the consequential result, in this Grayling in Wonderland world, of its own decision being subject potentially to judicial review.

The Government’s intention not to exclude legal aid for the preparatory work for an application may be welcome but, as the committee points out, that intention appears to conflict with the Civil Procedure Rules, which make payment for such work discretionary. How does the Minister respond to that point raised by the committee?

This is, of course, one aspect of the so-called “chilling effect”, to which many consultees and Members of your Lordships House tonight have referred; that is, the reluctance of practitioners to undertake work within the tightly limited timescale of only three months—soon to be further reduced, by the way, for planning matters—to lodge an application for which they may not be paid. Again, the committee draws attention to this issue at paragraph 20. What assurances, and examples, can the Minister give about this key issue, and will he confirm, in the words of paragraph 21 of the report, that “unambiguous guidance” on how the Legal Aid Agency intends to exercise its discretion will be published after consultation, or, better yet, will he set out a clear definition in these or further regulations?

This, after all, is the nub of the issue. As the Bingham Centre for the Rule of Law pointed out, it is privately funded cases that are more readily pursued and less likely to succeed, with permission granted to 48% of legally aided applicants against 9% of others. Nor is there anything to suggest that legally aided judicial review cases,

“are pursued in a reckless way that results in a relatively high number of ‘weak’ cases”.

That statement comes from the Bingham centre. More legally aided cases do not proceed to the stage of seeking permission, such that it is clear that legal aid lawyers are acting responsibly.

The centre points out that no reference is made to the behaviour of defendants in relation to applications for permission. Will the Minister undertake to review this aspect, which might encourage a more reasonable response and/or generate some benefits in terms of cost? Similarly, will the Minister consider the suggestion of Michael Fordham QC, supported tonight by the noble Lords, Lord Pannick and Lord Carlile, to revisit the ministry’s own proposal for a mechanism under which the judge initially considering an application for permission could issue a “totally without merit” certificate?

The notion that legal aid practitioners lend themselves to the pursuit of worthless applications for judicial review is risible—not least because the fees generated are modest, as the estimated aggregate savings confirm. In many cases, of course, cases do not reach the application stage. Matrix Chambers quotes estimates ranging between 60% and 90% not reaching the application stage, very often, as we have heard, because a defendant will accept and resolve a claim once it is lodged. Matrix says this is particularly relevant in social welfare cases, which will hardly come as a surprise in the light of the shambles around benefits issues, but also given the pressure under which the National Health Service and local authorities—two public agencies that are frequent defendants in these matters—are having to work.

We are, it seems, being driven ineluctably down a road leading to a two-tier system of justice, in this and other contexts, in which access is increasingly limited to those with the means to pay—a developer in a planning context perhaps, as against the local resident. When the defendant is the state or an executive agency it is all the more important that the citizen can have recourse to law. As the noble and learned Lord, Lord Neuberger, President of the Supreme Court, put it in a lecture last October,

“one must be very careful about any proposals whose aim is to cut down the right to judicial review. The courts have no more important function than that of protecting citizens from the abuses … of the executive—central government, local government, or other public bodies”.

He went on to stress how,

“important it is for the rule of law that such abuses and excesses”,

which result in injustice to the citizen,

“can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly”.

He concluded:

“While the Government is entitled to look at the way that judicial review is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining judicial review, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of judicial review”.

The noble Lord, Lord Pannick, has characteristically done the House and our system of justice and those who seek justice an important service by tabling his regret Motion. If he had decided to take it to a vote the Opposition and I believe many other Peers would have supported him. I understand that is not his intention. However, the Government should take very seriously the substantial critique of their proposals made by two bipartisan committees—one in each House—and by speakers from around the Chamber tonight, with and without direct legal experience. The points they have raised go to the heart of our legal system. The Minister has been given an unenviable brief tonight. I know that he will take back what has been said to his ministerial colleagues. I hope they will have the good sense and moral purpose to reflect on what has been said here and to change their position. It would not be a sign of weakness; it would be a sign of strength to acknowledge that they have not got things right and that they can put them right at the very least by securing proper parliamentary approval for any changes that they see fit to bring forward.

My Lords, I am grateful for the opportunity to accept the invitation to gird my loins and to respond to the noble Lord, Lord Pannick, and others—lawyers and non-lawyers alike—who have spoken in this debate this evening. As the noble Lord, Lord Pannick, said, many of us are veterans of the LASPO Bill, and I count myself as one. I declare an interest as until recently I was a barrister who practised in, among other areas, the field of judicial review, acting for both applicants and respondents, so I have some experience of this procedure. I should explain to the House the Government’s position on the regulations concerning the remuneration for legally aided judicial review permission applications that were laid before the House on 14 March and came into force on 22 April.

The debate has ranged far and wide this evening. We have had references to the separation of powers, a reminder of Montesquieu, a magisterial analysis of the developing role of the Secretary of State and the Lord Chancellor and a call to the reversion of the status quo ante, whereby the Lord Chancellor had a rather different and separate role. We have had a critique by the noble Lord, Lord Howarth, of the whipping system and of the machinery of government as a whole; an implied undertaking to repeal the Fixed-term Parliaments Act; a criticism of reforms of the national health system; and an attack on the Government as a whole. We have also had criticisms of the exceptional funding arrangements in the LASPO Bill and of the social welfare law provisions. To respond to all these issues would take several hours. I hope that noble Lords will understand if I do not do so but concentrate on the rather prosaic matter of these particular regulations.

During the course of the speeches of great quality which we have had this evening, a dispassionate observer would have thought that the Government were abolishing judicial review. Such a course would of course be of fundamental importance and would indeed fall foul of the many criticisms that have been ranged against it this evening. I entirely accept that judicial review is a critical check on unlawful action by public bodies and that it is wholly right that individuals should be able to access this mechanism. The many cases cited by the noble Baroness, Lady Stern, are examples of successful judicial reviews. The noble Baroness, Lady Campbell, quite rightly drew attention to the many actions that have been assisted by judicial review to right wrongs. Nothing about these modest regulations will do anything to erode that.

Civil legal aid for most judicial review cases will remain within the scope of the legal aid system. These regulations relate solely to the remuneration of legal aid providers and will ensure that limited legal aid funds are not used to remunerate weaker cases. The detail—prosaic though it is—does matter. It is a long-standing feature of our legal aid system that there should be limits on access to funding based on the strength of the case. To qualify for civil legal aid, cases must satisfy a merits—or prospects of success—test. Broadly speaking, a judicial review case must have a 50% or greater prospect of success at the final substantive hearing. However—there has not been a great deal of reference to this in the debate—noble Lords will be well aware that before any substantive judicial review hearing, the court must first give permission to proceed. Permission will be given if the court considers that a case is arguable and therefore merits full investigation. The permission stage therefore acts to filter out weaker cases at an early stage in the process.

Providers are well placed to assess whether or not the court is likely to grant permission before they issue an application. They will not be required to make a random guess before taking the risk to issue proceedings. That is because their assessment is undertaken following the pre-action stage of the process during which time providers gather the relevant information about the strength of the case. Noble Lords may be familiar with the protocol that applies in these cases. It is that information that enables them to make an assessment as to whether to issue proceedings. Under the policy, work to investigate the strength of the case and engage in pre-action correspondence would not be at risk. A case that has received legal aid and so has been assessed as having a 50% or greater prospect of success at the final hearing should be more than capable of satisfying the lower arguability threshold.

However, Legal Aid Agency data indicate that a significant number of legally aided cases—751 in 2012-13—apply for permission and fail, with potentially substantial sums of public money being expended. The commentary on civil procedure contained in the White Book, with which all lawyers will be wholly familiar, states as follows in rule 54.4.2, which deals with the permission application:

“The purpose of the requirement for permission is to eliminate, at an early stage, claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that there is a case fit for further consideration”.

That is a synthesis of the case law. It was quoted in the consultation, to which there has been some reference. The Government do not consider it fair or justified that limited taxpayers’ money should be used to fund such cases. The legal aid merits criteria provide an important control, but it is clear that they are insufficient by themselves to address the specific issue that we have identified in judicial review cases. These regulations will therefore introduce a further control by placing remuneration for the work on a judicial review at risk from the point at which proceedings are issued—that is, when an application for permission for judicial review is made to the courts. Providers will be paid for this work if the court gives permission.

Permission may be applied for but a case may of course also conclude prior to the court’s decision, a point made by a number of speakers. In those circumstances providers should seek to recover costs, either through agreement with the other party or by a costs order made by the court which orders the public body to pay the legal costs. Where this cannot be achieved, the regulations enable the provider to apply to the Legal Aid Agency for a discretionary payment. These regulations do not—as I think the Motion of the noble Lord, Lord Pannick, seems to suggest—make legal aid in judicial review cases solely dependent on the court granting permission to proceed.

This policy was the subject of extensive public consultation. The Government have listened carefully, and gone to lengths to modify the proposal to ensure that payment will continue to be made in meritorious cases. In response to concerns raised in the first consultation that strong cases will often conclude pre-permission, without costs being recoverable—a perfectly fair point made by a number of noble Lords—we moved to introduce a discretionary payment mechanism. In response to concerns that this discretion would be too inflexible—for example, that it could penalise providers who acted reasonably throughout but where new information subsequently came to light which altered the strength of the case—we modified the factors that the LAA would have regard to, and ensured that these would be non-exhaustive.

Remuneration will continue to be paid for the earlier stages of a case, where investigations are carried out into the prospects and strengths of a claim and pre-action correspondence is exchanged with the defendant. The regulations would not affect subsequent work in respect of the substantive hearing, once permission has been given. Nor would they place at risk any reasonable disbursements which arise in preparing the permission application, such as expert’s fees and court fees. Work relating to applications for interim relief will also not be at risk. Of course, providers can always discontinue the process, either following the pre-action stage where providers can decide not to issue proceedings on the basis of their assessment of the evidence, or after proceedings have been issued, where providers may seek to discontinue the case if they consider that the prospects of success have been materially altered.

The regulations only and specifically put at risk work on the permission application, in accordance with Part 54 of the Civil Procedure Rules 1998 or Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008, where an application has been issued. By way of example, this would include work on drafting the grounds of claim, and preparing the claim form or application for permission and the bundle of documents. I have been somewhat surprised by arguments that providers would be unclear what work would and would not be at risk. These are matters with which any legal aid provider who carries out litigation will be very familiar, for example for the purpose of preparing a statement of costs.

I am sorry to interrupt, given the lateness of the hour, but what my noble friend is saying perplexes me. Would he please look at Regulation 5A(b)? This deals with the situation where neither a refusal nor a granting of permission takes place, and the Lord Chancellor is then given discretion where he considers it is reasonable in the circumstances to pay remuneration, taking into account (i), (ii) and (iii). I will not embarrass the Minister by reading those out, because everyone would laugh if I did. But looking at (i), (ii) and (iii), and putting himself back in the days when he was a barrister appearing for applicants, how on earth could he reasonably predict the outcome, so far as costs are concerned, with those criteria?

I will endeavour to answer my noble friend’s question when I come to deal with the discretion.

We do not expect that these regulations will result in providers leaving the market—one point that was made—or that there will be an insufficient number of providers remaining. We do of course expect some providers to take on fewer judicial review cases. Indeed, it is the purpose of the policy to provide a disincentive to providers taking on unmeritorious cases and thus to ensure that limited public funding is targeted at the cases that justify it. While I wholly agree with my noble friend Lord Cormack about the importance of the rule of law and the appropriate endorsement of Lord Bingham’s book, he seemed anxious to encourage any sort of case on the basis that some case might emerge from the morass of unmeritorious cases. We are keen to reduce the size of the trolley of the noble Lord, Lord Carlile, so that those who are contemplating bringing judicial review proceedings think long and hard before going on to make these applications.

The Government firmly reject the accusation that these regulations will undermine access to justice. There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious. A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused. There has been little about interim relief, but I have made it clear to the House that these will not be caught by the restriction on legal aid that these regulations involve.

I now respond to the argument that further guidance should be issued on the Legal Aid Agency’s discretion. During the consultation process, the proposal was criticised for prescribing too rigid a list of criteria that the agency would consider. The Government responded by modifying the criteria and making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.

That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision. No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation. This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances. The consultation response sets out in further detail how the LAA will apply the factors that we have set out and we do not consider that additional guidance could add anything further to this.

As noble Lords will be aware, the House of Lords Secondary Legislation Scrutiny Committee issued a report criticising the regulations, which has been much referenced. We have responded to the report and a copy of the letter has been placed in the House Library. I hope that noble Lords have had an opportunity to see it. The Government will also respond to the report of the Joint Committee on Human Rights in due course. Many of the questions posed in that report were repeated by the noble Lord, Lord Beecham. We will respond in detail to that report and most of the questions that he posed will be answered. We will, of course, keep the operation of these regulations under review as part of the planned post-implementation review of the totality of changes brought in by the LASPO Act, due to take place in the next two to four years.

I acknowledge that the Government have made a number of significant changes to the civil legal aid system since we came to power. The underlying rationale for all these, including the regulations that we are debating tonight, has been to bear down on the cost of legal aid. That is necessary in the current financial climate, which was acknowledged, despite severe misgivings about these regulations, by the noble and learned Baroness, Lady Butler-Sloss. We need to ensure public confidence in the legal system by targeting limited legal aid resources at the people and cases where funding is most needed. These are the aims that I believe the public firmly support.

There has been a great deal of criticism of my right honourable friend the Lord Chancellor and his role. I do not think it is appropriate for me to go into the detail of the attacks that have been made on him. I am sure that noble Lords are sufficiently generously spirited to perhaps construe his referring to left-wing causes as a bit of hyperbole on his part. It matters not, of course, whether the applicant is left wing, right wing or has no political view at all. The question is whether the case is meritorious and whether it should be supported by what are sparse legal aid funds. It is important that the limited availability of legal aid should be targeted appropriately. What this regulation does is not to abolish judicial review, but to limit—in very specific circumstances—the recoverability of legal aid, once the information is available, and subject to the discretion which I have attempted to describe. We may have further arguments, I suspect, when the Bill referred to by the noble Lord, Lord Pannick—the Criminal Justice and Courts Bill—comes before your Lordships’ House. That Bill has various other provisions which do, to some extent, restrict the scope of judicial review, but certainly do not abolish it.

I will, of course, take back the comments made by noble Lords from all round the House to my right honourable friend the Secretary of State and Lord Chancellor, and will convey the anxiety expressed about this erosion, as it characterised, of a constitutional principle. I ask noble Lords to look at the reality of what these regulations propose and not to be too exercised by what has been, I think, somewhat exaggerated in terms of their effect in restricting judicial review. I respect the rule of law, as I hope noble Lords will accept. I accept the value of judicial review and I would not wish to be part of any Government who abolished judicial review. It remains an important constitutional provision begun, as my noble friend Lord Lester described, in the 1970s and developed since, but it is not an illegitimate aim to look at where resources can be properly targeted and to make appropriate adjustments to make sure that only cases which are really worth the public’s expenditure are reaching the court.

My noble friend has expressed his regrets, with his characteristic economy of words. I hope his regrets have been somewhat mollified by this response.

My Lords, before the Minister sits down, would he give some consideration to the unanimity of the view which has been expressed in this House—which I have audited—that this measure is a constitutional monstrosity? Would he consider, and represent to his departmental colleagues, the possibility that Parliament may come to grips with these issues and take the decision? This is one which, because of its constitutional extent, should be decided not by a Minister but by a Minister in Parliament.

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.

My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.

The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.

I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 9.12 pm.