Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I should also like to support the amendment moved by my noble friend Lord Hart of Chilton. I will be interested to hear from the noble and learned Lord the Minister why, in the way the Bill has been formulated, there is a specific insistence that the director of legal aid casework should be a civil servant. There are possibly conflicting connotations in the term ““civil servant””. On the one hand we always want to think of civil servants as people who are politically impartial; but on the other hand, it is the responsibility of civil servants to carry forward the political programme of the elected Government of the day. In that latter sense I share the anxiety expressed by other noble Lords that the director of legal aid casework, being a civil servant, may not be as sufficiently independent of government as is desirable and, importantly, may not be seen to be sufficiently independent. We also take as an important principle of our constitution that the operation of the courts and the administration of justice should be separate from the operation of the Executive. Here, however, we have a proposed new set of arrangements which clearly brings decisions about the allocation of legal aid in-house. We were told in Committee that the director of legal aid casework will be an individual in charge of an executive agency. Perhaps it is the case—I do not know—that the directors of executive agencies are always civil servants, but if they are not, I would like to know why it is felt to be so crucially important that in this instance he should be a civil servant. My noble friend Lord Hart touched on the possibility of conflict of interest. Very often the Government or one of their agencies will be the defendant in a case. Can it be right that a civil servant will determine who should or should not have access to justice in a case concerning, for example, judicial review, special educational needs, community care or the abuse of position or powers by a public authority? There is at least the risk of the perception that the odds will be stacked against a would-be litigant seeking remedy in the courts where there has been misbehaviour or abuse by a public authority. In Committee the noble and learned Lord, Lord Woolf, made the case that it would be desirable that the person holding the office of director of legal aid casework should be someone with a legal background who, because of his experience and formation, would have a deep understanding of the way the courts work and of the legal system. He also made the point that it would be undesirable that the director, being a civil servant, should be expected by other senior civil servants working in the Ministry of Justice necessarily, as it were, to conform with their wishes. It is essential that the director of legal aid services should be both seen and heard to stand up for legal aid and those elements of the justice system that legal aid has always been, and I think still is, intended to secure. I shall revert to a question that I raised with the noble Lord, Lord McNally, in Committee. Will the director of legal aid casework be allowed to have a public voice? If, for example, he comes to the view that directions or guidance issued by the Lord Chancellor or provisions made by the Treasury to support legal aid are inadequate or in some other sense wrong, will he be entitled to speak out publicly on behalf of legal aid, the beneficiaries of legal aid, or the people who should be its beneficiaries? The noble Lord, Lord McNally, told us that a framework document would be produced that will set out the governance and reporting arrangements for the relationship between the Lord Chancellor and the director of legal aid casework, and he assured us that that document would reflect the principle of independence of decision-taking by the director. Can the noble and learned Lord tell us whether the document is now available so that we can have the benefit of it as we consider the extent to which we should endorse the Government's proposals or amend them?