Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I thank all noble Lords who have taken part in this debate, who it is clear wish to see ““independence”” in the Bill. It is probably not a matter of dispute or conflict between those who have contributed and the Government that individual cases, as set out in Clause 4(4), will be undertaken robustly and without political interference. I certainly share the view expressed by the noble Baroness, Lady Mallalieu, who said that it was important that the director is not political or in any way susceptible to political pressure. I think that Members on all sides of the House would agree with that. Perhaps it would be of help, and pick up on the question raised by the noble Lord, Lord Howarth, if I took a moment to explain to your Lordships the type of relationship that we anticipate between the Lord Chancellor and the director of legal aid casework. One of the main objectives in abolishing the Legal Services Commission is to ensure that Ministers have greater accountability for legal aid in policy, administration and expenditure. We have no intention of recreating the non-departmental public body status of the current Legal Services Commission. That is one of the purposes of the Bill and it is why we have indicated in Clause 4(1) that the director of legal aid casework would be a civil servant. That is at the structural level, but it is accepted that it is fundamentally important in getting the balance right that an area should be carved out, which is sought by Clause 4(4), in which the Lord Chancellor may not issue the director with guidance or directions: namely, in relation to carrying out the director's functions in individual cases. In terms of policy objectives and the prohibition at Clause 4(4), the director's freedom from political interference in carrying out his functions in individual cases is paramount. It remains the Government's view that the protection afforded in the Bill and the additional transparency, about which I shall say more in a moment, achieves the right balance between not risking the director's freedom from political interference in individual cases and not compromising the structural relationship that is sought to be achieved here. As my noble friend Lord McNally said in Committee, the existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. While the Lord Chancellor can, as is recognised in the amendment of the noble Lord, Lord Hart, issue directions and guidance to the director about the carrying- out of the director's functions under Part 1 of the Bill—an example would be in relation to his or her functions under Clause 9—these powers are not unfettered and there are safeguards. At the risk of repetition, it is worth reminding your Lordships' House what these protections are. First, the Lord Chancellor has no power to give directions or guidance in relation to the carrying-out of the director's functions in individual cases. My noble friend Lord Faulks and one or two other noble Lords asked about classes of case. It is possible for the Lord Chancellor to issue directions or guidance in relation to classes of case: for example, as I have already mentioned, in relation to exceptional funding under Clause 9—indeed, it will be necessary to be able to do so to operate that scheme. But let us be clear; these directions and guidance must be published. There is no intent, and we believe that the structure of the Bill does not make it possible, for this to be done under the table or in some clandestine way. It is important to remember that, with regard to individual cases, to deviate from that requirement would be unlawful. It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. In referring to Clause 5, perhaps I may respond to the point raised by my noble friend Lady Hamwee. Clause 5(5) relates to the ability of the Lord Chancellor to direct the director in relation to the delegation of the director's functions. The ability to issue direction requiring a director not to authorise, as well as to authorise, a person to carry out a function allows, for example, the Lord Chancellor to prohibit delegation to a particular level of civil servant. I hope that that gives some background as to why that provision is there. Secondly, the scope of civil legal aid will be tightly drawn in Schedule 1 to the Bill. There will be regulations under Clause 10 that set out the merits criteria for cases that are within the scope of civil legal aid. Any directions or guidance issued by the Lord Chancellor cannot conflict with the criteria set in secondary legislation. I should add that those criteria will be subject to the affirmative procedure, so Parliament will have an opportunity to debate thoroughly any proposed changes. Thirdly, the Bill imposes a duty on the Lord Chancellor to publish guidance and directions that ensure transparency. For example, we intend to issue guidance on the provision of exceptional funding under Clause 9, which will guide the director on the legal and other factors that he or she should take into account in making decisions under Clause 9. This guidance will be published, so that applicants for funding and their legal representatives know the criteria that the director will apply in making decisions about a case. The final protection is the framework document, to which the noble Lord, Lord Howarth, referred. It is not yet published, but it will be published ahead of the agency being created. Quite naturally, there are a number of details still to be fleshed out, but I can assure not only the noble Lord but the whole House that it will feature reference to independence of decision-making in accordance with Clause 4. As has been said in a number of contributions to the debate, the principle of independence of decision-making in individual cases is important because some of these cases may be against a government department or indeed the Ministry of Justice itself. This framework document will be published and I hope that it will provide transparency and further assurance on the relationship between the Lord Chancellor and the director. With that suite of measures contained in the Bill and to be brought forward, we feel that the powers afforded to the Lord Chancellor, when combined with the prohibition on interference in the carrying out of the director's functions in individual cases, strike the right balance between providing the Lord Chancellor with a degree of oversight and protecting the director in making decisions in individual applications for legal aid.