My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.
Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.
The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.
The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.
I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a
welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.
I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.
Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.
Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.
The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.
Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.
However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is
governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.
Amendment to the Motion