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Tribunals, Courts and Enforcement Bill [Lords]

I am more familiar with the procedure in the legal aid system in which another party to a case has the option of writing to the Legal Services Commission to say that in their view the legal aid is being misused, and to set out a case. That is a tool that can be used as part and parcel of the dispute, and it sometimes is, but if it is well grounded, the Legal Services Commission will be obliged to look at it. That is a step that ought to be taken in the circumstances that the hon. Gentleman has outlined. The amendment is similar to amendments tabled in Committee, and in the Grand Committee and on Report in the other place. In both Houses, the amendments were pressed to a vote, and in both Houses they were defeated. One of the greatest assets of tribunals is that people do not usually need a lawyer to pursue their point. As the hon. Member for North-West Norfolk puts it, ““Let’s keep lawyers out of it if we can.”” Tribunals are not courts. Unlike courts, most tribunals do not rely on strict rules of evidence; they adopt a much more inquisitorial approach. They question the user to find out the relevant information, and do not therefore place the burden entirely on him to present his argument. The majority of tribunal users can relay their evidence by answering questions, without the need for legal representation. For those who qualify financially, however, legal aid is available in the form of a legal help scheme. Although that does not provide representation, it does provide advice and assistance and can pay for counsel’s advice within its fee structure. For example, in the situation conjured up by the hon. Member for North-West Norfolk, in which someone’s case is adjourned mid-tribunal for a complicated point of law to be tackled, resort to legal help would make available solicitor’s or counsel’s advice on the point in question. The Government understand that the tribunal experience can be daunting for some. As the new tribunals come on stream, there will be a wave of effort to ensure that users of tribunals receive good information. We will improve information and provide the opportunity for the case to be informally evaluated before the hearing process gets under way, which will be hugely helpful and give pointers to people seeking to represent themselves at tribunal. We acknowledge, however, that legal aid for representation has a role in tribunals. It is available for the Asylum and Immigration Tribunal, the Employment Appeal Tribunal and the Mental Health Review Tribunal. It is also available, in cases of special difficulty, for all tribunals where the exceptional funding criteria are met. I think that the hon. Members for North-West Norfolk and for Newbury (Mr. Benyon) both referred to that. We would like to do more. As I said on Second Reading and in Committee, we are reforming the legal aid system. We are putting lawyers on fixed fees for standard cases, but with exceptional cases being paid for by the hour, which will help control the legal aid budget. The reasons for those changes are partly so that we can rebalance the legal aid budget towards the civil side, including social welfare law. That is imperative, and it is our purpose. Those are my comments about the broad issue of legal aid. New clause 3 would require the Lord Chancellor to provide legal aid for judicial review hearings transferred to the upper tribunal. I understand the point, and have immense sympathy with it. Were there a judicial review in the court, legal aid would follow. Were the judicial review moved across to the upper tribunal, however, legal aid would follow only if the exceptional funding criteria were brought into use. I understand that that difference is unacceptable. We intend to change the funding code, which does not require an amendment, so that legal aid for judicial review in the High Court is available if a judicial review is transferred to the upper tribunal. Consequently, the scope of legal aid will be amended. I hope that that meets the nub of what the hon. Member for North Southwark and Bermondsey was getting at with new clause 3. It seems to me that we should go further and monitor the transfer of cases to the upper tribunal, which we will do. We should also monitor the change that will inevitably come as a result of the implementation of the Bill and the existence of the upper tribunal: what would now have to go to judicial review would instead be able to go as a statutory appeal to the tribunal. If, in due course, that started to happen, we would not want people to be disadvantaged by the non-availability of legal aid. For the time being—I hope that this meets the need that the hon. Gentleman has identified—we intend to ensure that the scope of legal aid is extended, so that if a case is transferred to the upper tribunal, legal aid will be available if it is a judicial review. I am not saying that we would never seek to extend legal aid into other sectors. My noble Friends in the other place have said, and I have said in this House, that when we have the current legal aid spend under control we will consider how best to use such freed resources. I hope that my explanations are sufficient to persuade hon. Members not to press the amendments to a vote. If they do, however, we will oppose them.