Legal Aid, Sentencing and Punishment of Offenders Bill

If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords. The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1. However, against the backdrop of this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9. The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty. Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services. In addition, the Lord Chancellor will be required, in carrying out his functions, to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market. Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.