Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this amendment is in my name and that of the noble Lord, Lord Alton of Liverpool. It seeks to confer on the Lord Chancellor a power to disapply provisions of Part 2 in particular categories of case. Noble Lords will know that Part 2 removes the power of the court to make unsuccessful defendants pay success fees and ““after the event”” insurance. Successful claimants would need to make these payments out of their damages. Concern has been expressed in your Lordships' House that this may deter or prevent claimants bringing meritorious claims and may operate unfairly by effectively reducing the damages which they obtain. This concern has been expressed in a wide variety of legal contexts from industrial injuries to insolvency claims. The Minister's response to these criticisms has been to express the hope, and sometimes the belief, that Part 2 will not have the adverse consequences on access to justice which critics of these provisions fear. The reality is that neither the Government nor the critics of Part 2 can be sure what effect it will have on access to justice in practice. The Minister will, I hope, accept that it is possible that after the Bill is enacted and comes into effect, experience may show that in specific contexts the concerns expressed by those of us who are worried about the implications of Part 2 are justified, and that access to justice is being impeded. This amendment would confer a discretion on the Lord Chancellor to respond to any problems that are seen to occur after enactment by excluding defined categories of case from the statutory provisions if he thinks it appropriate to do so. The new provision would confer a power in Part 2 equivalent to the Lord Chancellor's power in Part 1 under Clause 9(2) to modify Schedule 1 in relation to the scope of legal aid—a power for the Lord Chancellor which the Government accepted was appropriate in Part 1. I cannot see why the Lord Chancellor would not wish to have such a discretion in Part 2 equivalent to that which is given by the Bill in Part 1. In neither context does the discretion impose any duty on him. Parliament is unlikely for some time to have another opportunity to look at these important matters. Given the importance of the changes that we are making in Part 2, given the concerns that have been expressed about their impact on access to justice, and given that these matters may look very different indeed in some legal contexts in the light of experience after these changes are made, it is surely wise to add to the Bill a power for the Lord Chancellor whereby it would be entirely within his discretion to modify the effect by excluding categories of cases. I beg to move.