Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments. I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well. We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers—and here I have no doubt that it was experienced and leading counsel—told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test. It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be, "““so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it””." Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state. Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law is a huge advantage to our law and very much respected around the world, but surely the answer for those who have suffered in that way is not to punish them for the bad decision-making that has been made by the state. There have of course been problems with judicial reviews being used as a weapon by some people—letter before action, in particular. However, as has been stated, the tests are very rigorous and do not permit vexatious or tendentious proceedings. They effectively act to safeguard the public purse, and we have heard no arguments at all to suggest that there has somehow been a failure of the system in the areas that are being taken out of scope of judicial review. It is really incumbent on the Government to show that there has been a failure of the system before taking these cases out of scope. The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system: "““We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures””.—[Official Report, Commons, 31/10/11; col. 650.]" In his response in writing, however, he said: "““We do not keep these specific figures””." I raise that not to make some petty point but only to invite the Minister—who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly—to please go back and double-check whether there are any of those figures.