Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, on this occasion, as in Committee, the House has been treated to the observations of a veritable constellation of legal luminaries, supplemented today by my noble friend Lord Howarth. Indeed, the whole principle of independence was a matter of strong comment not only by the Constitution Committee, as referred to by my noble friend Lord Hart, but by the Joint Committee on Human Rights. Both in Committee and today that concern has manifested itself across a number of speeches that have drawn attention particularly to the difficulties that could arise on the appointment of someone with very wide powers that could conceivably be exercised in an independent spirit. However, as the noble Lord, Lord Phillips, pointed out in Committee and again today, there must be not only actual independence but perceptible independence. That is very much open to question. On the last occasion the noble Lord, Lord Faulks, drew attention to the difficulties that could arise with the exceptional cases category under Clause 9, and that certainly remains an issue. He rightly said: "““Whether a case falls within the exceptional case category””—" which is to be determined by the director— "““is bound to be somewhat controversial””.—[Official Report, 10/1/12; col. 86.]" It might be thought that that is almost judicial understatement, but it is certainly a highly relevant matter that was not really addressed on the previous occasion by the noble Lord, Lord McNally, who laid great stress, perhaps understandably, on the fact that the director would be independent from interference in individual cases. As others of your Lordships have pointed out, that is not enough. The noble Lord, Lord Phillips, referred then to Clause 4(4) and has reminded us of it today. That gives a wide power of direction to the Minister. Presumably, therefore, whole categories of case might be ruled out of access to legal aid, which cannot conceivably be regarded as satisfactory. The amendment does not in terms address the character of the director. There must be concern, shared widely and beyond even those who have spoken today, that it would be a civil servant, without necessarily any legal or any other qualification, who was appointed. What criteria might the Government have in mind for a potential appointee to this significant position? Although it is for my noble friend to decide, I would hope that, unless the Minister indicates that the Government wish to think again about this matter, the House might wish to take a view on it. There are a number of other pieces of legislation in which independence is in the forefront of the argument. I refer, for example, to the health Bill, in which there are issues around certain organisations and bodies where independence is thought to be highly desirable but which the current proposals do not embrace. It is even more important in the context of justice that there should be that independence. Therefore, the Opposition strongly support the amendment moved by my noble friend. We welcome the Government's amendment. It would be helpful to have a report, but that does not take us very far on the more important issue on which we wait to hear what the noble and learned Lord has to say.