Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid—albeit subject to the relevant court certifying one of the matters listed in the amendment—for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court. Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9. As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1. One area of distinction is that the amendment also seeks to bring into scope any case which is certified to be of ““significant wider public interest””. Under the current legal aid scheme there is a rule that allows any excluded case—other than a business case—to be brought back into scope if it is of significant wider public interest. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance. Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision. I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.