Legal Aid, Sentencing and Punishment of Offenders Bill

That is the point I was about to make. It is possibly based on the majority of cases currently going to the Upper Tribunal. As my noble friend rightly points out, we perhaps do not know how many cases would be certified as complex. That is an unknown unknown. I think my noble friend gets the point I am trying to make: we do not know that. My noble friend makes an important point that the complexity of those cases arising out of the social entitlement chamber would be one factor that could engage Article 6 and lead into the exceptional funding in Clause 9. That exceptional funding is intended to take account of Article 6 issues. As he indicated in moving his amendment, that would require taking into consideration the complexity of each individual case considered under Clause 9. He indicated that that could lead to a waste of resources and he asked what was lost were a judge to make the determination rather than a legal aid director. One possible response is that the director's determination under Clause 9 is whether the case is such that the refusal of legal aid would be a breach. Clearly, each case would have to be determined on its individual merits. We move on to bringing into scope cases which are 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. As I have indicated previously, the Government do not intend to include such a rule in the civil legal aid scheme created by the Bill. My noble friend also made a point that I wish to reflect on. I think he referred to the Cart case in terms of judicial review. If one were to go down that route, where legal aid would be available, the balance would be in terms of costs as opposed to what he proposes, where there would be a possibility of certification of a case in the significant wider public interest. Without being in a position to make any commitment as to the outcome, on the point that the noble Lord raised—as well as the point that he made that not all cases would necessarily qualify that went to the Upper Tribunal or beyond—I have discussed the issue with my noble friend Lord McNally and we would be willing to consider this further if the noble Lord will withdraw the amendment. However, I make it clear that I cannot guarantee that he will necessarily ultimately get the result that he wants. But he has raised matters that I want to reflect on and pursue further. I include the noble Lord, Lord Bach, in that. There are important legal issues at stake.