Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the House had the opportunity to debate issues similar to those raised in the amendment during detailed discussions in Committee and on Report. As the noble Lord, Lord Pannick, indicated, my noble and learned friend Lord Mackay of Clashfern came up with the phrase ““in the interests of justice to prevent injustice””, which I said at the time had a certain seductive charm and that I would think about it. The noble Lord, Lord Pannick, moved the amendment and argued his case with seductive charm, as did the noble Lord, Lord Hart. The noble and learned Lord, Lord Woolf, was very much to the point, as was, very briefly, the noble Lord, Lord Bach. I can assure the House that we have thought about these points. The Government believe it is right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual's fundamental rights of access to justice, and Clause 10 achieves this important end. It will be necessary to provide services to an individual under Clause 10(3)(a), where a failure to provide some measure of legal aid would, for example, clearly amount to a breach of Article 6 of the European Convention on Human Rights, which guarantees an individual's right to a fair trial and access to the courts. As has been said on a number of occasions when we have debated exceptional funding determinations under what was Clause 9 but is now Clause 10(3), they will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. In considering whether legal aid should be provided in an individual case engaging Article 6, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individuals to represent themselves effectively; and the alternative means of securing access to justice. It is not lost on me that the noble and noble and learned Lords who tabled the amendment have carefully mirrored the existing formulation of the clause in their proposed addition. I thank, particularly, the noble and learned Lord, Lord Mackay of Clashfern, for triggering this discussion and this line of thought in Committee. I again assure the House that I have considered the alternative formulation carefully. However, as I said on Report, we are satisfied that the provision that the Bill currently makes in respect of excluded cases is both appropriate and sufficient. First, it is extremely important to make the point that, under the existing draft of the clause, the director will be able to provide funding for cases to prevent a specific injustice in so far as that injustice also amounts to a breach of the European convention or relevant European Union law. The Government believe that it is more appropriate to use this legal benchmark as a means of determining whether an applicant would suffer injustice. Article 6, in particular, provides a suitably serious threshold, guaranteeing the right to a fair trial and an individual's right of access to the court. Obviously, I cannot provide a blanket guarantee that every matter that noble Lords would consider an injustice would be covered by our formulation of this clause. However, at this point, I take the House back to the fundamental structure and architecture of the changes that we are making to the general legal aid scheme. We have said on many occasions that these reforms are required to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue, the litigant's ability to present his or her own case—including their vulnerability —the availability of alternative sources of funding, and the availability of other routes to resolution. As noble Lords know, we have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases: for example where a person's life or liberty is at stake, they are at risk of serious physical harm or immediate loss of their home, or children may be taken into care. I recognise and appreciate that the second limb of the carefully crafted amendment, as the noble Lord, Lord Pannick, has indicated, goes some way to meeting concerns that were expressed on Report about the potential breadth of such an amendment. Under the proposal, the director will only be able to use such funds as the Lord Chancellor decides to make available for the purpose of this subsection. However, I ask your Lordships to reflect on the fact that this approach would create a rather peculiar arrangement that would be at odds with the safeguards concerning the independence of the director, which we believe are fundamental to our proposals and which we have strengthened in response to valuable debates that have been held throughout the Bill's passage. I accept and recognise that the motivation is to give some leeway or discretion to the Lord Chancellor. The noble Lord, Lord Hart, said it would help the Government. Nevertheless, giving the Lord Chancellor a discretionary fund that he could allocate to the director at the time of his choice would risk politicising decision-making and eroding the clear boundaries that this statute seeks to create between the Lord Chancellor and the director. For example, let us envisage a scenario in which the director wishes to make funding available for a particular case but there are no funds available for him to do so. What is he meant to do in these circumstances? Would it be appropriate for the director to have to enter into discussions with the Lord Chancellor about the provision of funding for a particular case? Indeed, would it be permissible under the Bill, given that Clause 4(4) explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases? It is difficult to see how the Lord Chancellor could meaningfully give his assent to the provision of such funds without breaking the spirit—if not the letter—of that prohibition. Clause 4(4) guarantees the objectivity of the decision-making process for both in-scope and excluded cases, and is there to serve as a safeguard against political interference in the making of any individual exceptional funding decisions in the future. We do not wish to put that at risk by establishing a discretionary funding stream, as envisaged in this amendment. If we accept this amendment, we risk undermining not only the decision-making safeguards that the Bill creates but the general scope of our reforms of civil legal aid. These are important points, which weigh in the balance against this amendment. For the reasons given, I invite the noble Lord to withdraw his amendment.