Legal Aid, Sentencing and Punishment of Offenders Bill

This, I hope, is one of the least controversial of our amendments. If enacted, it would ensure that the decisions of the director of legal aid casework were subject to the ordinary standard mechanism within the United Kingdom for challenging decisions of administrative bodies—that is, the tribunal system. We are going to hear a lot about tribunals during the course of the Bill. The Government’s line about tribunals—they have told us this already and will no doubt repeat it—is that the First-tier Tribunals that were set up to be user-friendly are a success, are the right forum for challenging administrative decisions and are an effective forum. So we know that the Government support the system of tribunals. We have an array of First-tier Tribunals, the name given by the Tribunals, Courts and Enforcement Act 2007 to those bodies where appellants can appeal a decision in the first instance. Each of those tribunals is there to ensure that decisions made by emanations of the state are legally sound. For example, the General Regulatory Chamber of the First-tier Tribunal hears appeals against decisions by the Charity Commission, the Claims Management Regulator, the Office of Fair Trading, the Environment Agency, the Information Commissioner and local authorities. The Social Entitlement Chamber, where we would imagine these cases being heard, hears appeals against decisions by bodies that deal with social welfare and disputes about income support, jobseeker’s allowance, pensions and unemployment support allowance. There are four other chambers but the Committee will be pleased to hear that I do not intend to list all their duties. It should be clear that the established mechanism for challenging decisions by state bodies is the tribunals system, and we believe that in this amendment we are following the logic of the existing system. The Government have said in another place and to the Joint Committee on Human Rights, which looked at this issue, that, "““it is ‘intended’ that some but not all civil legal aid decisions will be appealable to Independent Funding Adjudicators, whose decisions in turn can be challenged by way of””—" here we go again— "““judicial review””." First, what folly it would be to force every applicant to wait for judicial review before they can effectively challenge a decision. Judicial review remains in scope of course, but do we really want to clog up the administrative courts with low-level challenges to the decisions of the director of legal aid casework? We would have thought not. Surely the right approach would be to use the much praised, fairly cheap and effective tribunal system. Secondly, we argue that there is a due process issue. The Ministry of Justice cannot be judge, jury and executioner in deciding who gets legal aid. There is, perhaps, a constitutional and human rights issue here, too. I quote briefly from paragraph 1.28 of the report of the Joint Committee on Human Rights on the Bill: "““In the absence of a right of appeal against determinations to an independent court, tribunal or other body in all cases, and bearing in mind the lack of independence of the Director””—" another finding of the Joint Committee— "““we are not satisfied that sufficient guarantees exist against arbitrariness in the system for determining individual eligibility for legal aid. We recommend that the Bill be amended to require regulations to be made making provision for appeals against decisions of the Director to an independent court or tribunal””." We on this side—and, I hope, the Committee—agree with that. The present system of adjudicators may well be satisfactory—indeed, it was—when the system is as it presently is. With a non-governmental public body, there is independence between the Government and the decision as to who should get legal aid in any particular case. However, once the LSC has been taken in-house, other considerations arise. It may be that the amendment that we are moving fixes a potentially serious problem. The European Court of Human Rights has ruled that there must be guarantees against arbitrariness of decision-making. Many human rights specialists have warned that without these changes the ministry may be found to have a fundamental lack of objectivity. This is a sensible amendment, which will not cost a huge amount of money. There are not thousands of these cases each year—only a couple of hundred. It is clear that if we switch, as the Bill will do, from a quango or non-departmental public body model to an internal department of the Ministry of Justice—a change that, as I hope I have already made clear, we on this side entirely support—there must be added checks and balances to the new model. We are sure that the Minister’s judgment and that of the Lord Chancellor are beyond reproach, but his civil servants are mere humans and they, as we all do on these Benches, make errors at times. All we are asking for in this amendment is that the Minister ensures that when those mistakes are made, as they will be in due course, we deal with them in the way that we deal with all aspects of administrative decision-making.