Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, Amendment 22 and Amendment 78 are concerned with appeals in social welfare and immigration cases. I am grateful to the noble Lord, Lord Bach, for paving the way to this earlier today. They seek to secure legal aid for appeals in welfare cases from the Social Entitlement Chamber and the Immigration Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court. By Clause 9 of the Bill, civil legal services other than Part 1 services are made available where the Director of Legal Aid Casework has made an exceptional case determination and, of course, an individual's means qualify. The tests of exceptionality as we have known them in the law, and as have previously been applied by the Legal Services Commission and indeed by the then Minister, Lord Bach, in person as he did from time to time, are no longer relevant. That is because an exceptional case determination is precisely defined in Clause 9(3). Exceptionality is directly linked to any case where the failure to provide civil legal services would be a breach of the European covenant rights—EU rights—or where there is a risk of such a breach. I seek to persuade your Lordships that there can be no clearer case of a breach, or at least the risk of a breach of Article 6 rights, than in appeals from the First-tier Tribunal to the Upper Tribunal or beyond if the litigant in person is opposed at the hearing by a government legal team of counsel and/or solicitors. This is particularly so since appeals are permitted only on a point of law and the litigant in person will be required to argue legal points for which he is by no means qualified. No appeal can be brought to the Upper Tribunal without the leave of the First-tier Tribunal, nor can appeals be brought to the Court of Appeal or the Supreme Court without leave. At each stage, leave has to be obtained. The mechanism is already in place for the judges who tried the case and heard all the facts to determine not just whether there is sufficient merit in the appeal on a point of law to go forward but to determine whether the issues are complex. Who better to judge whether a matter is complex than the judge who has tried the case? It is a small step to amend the rules to require them to certify whether or not the issues are complex. The alternative, looking at the Bill is it stands, is that applications will be made to the Director of Legal Aid Casework in all these cases where leave to appeal has been granted by the judge because there is a point of law that is worth arguing and the officers of the director, starting from scratch and picking up the papers for the first time, will have to determine whether there are merits and whether there is complexity on the papers alone, without ever having been involved in the hearing itself. It is a senseless waste of resources. On the other hand, if the court, having heard all the facts, grants leave on the basis that there is a point of law that is worth arguing and, in addition to that, certifies that it is complex, then an application to the director will be concerned only with the means of the applicant and whether he qualifies by passing the means test for legal aid to be granted to him. I can see no reason why the Government should resist these amendments unless there is some thought in the back of the minds of Ministers that the Director of Legal Aid Casework is more easily influenced by Ministers. But of course that is not their point. Their point is that the director is no less independent than a court, and his decision, subject only to general guidance, cannot be influenced by the Ministry of Justice. So what is lost? Why have a director trying to decide whether legal aid should be granted in the particular case on the papers as opposed to the judge giving a certificate of complexity and giving leave on the basis that there is merit? The difficult point is this—and I would be grateful if my noble friend could appreciate it. Since 30 September 2011, legal aid has been available if appeals from the First-tier Tribunal are framed as judicial reviews. Your Lordships may remember that there was a great deal of argument about whether judicial reviews could go to the Upper Tribunal as opposed to going to the Administrative Court. After a lot of argument, it was decided that the Upper Tribunal would be entrusted with judicial reviews. As my noble friend Lord Carlile pointed out today, judicial reviews are more involved with procedural matters—whether a decision could be said to be unreasonable beyond the scope of a particular judge—whereas where there is an appeal under statute from the First-tier Tribunal to the Upper Tribunal, the merits can be considered as well as whether there has been procedural fairness. The judges themselves have commented in their response to the consultation that it is ridiculous to have different procedures whereby you can get legal aid if you frame your case as a judicial review but you cannot get legal aid if you frame your case merely as an appeal on the merits of it. I commend these amendments to my noble friend and I look forward to his reply. I beg to move.