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

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?

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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.