My Lords, I hope to move this regret Motion in an entirely non-partisan manner, because this matter in my view affects the whole House and its reputation and it is not meant in any sense as an attack on the Minister, who has been on the side of the good within the department in trying to make sure that this ghastly Act of Parliament was modified.
Some noble Lords may remember the background to this state of affairs and others will not, so I hope that the House will forgive me if I set out as briefly as I can what has happened and why I believe that, in this case, the Government have behaved in a manner that has offended both against the constitutional arrangements that bind our country together and, importantly, against a small group of our fellow citizens who have been deprived of a legal right that they were promised by the Government.
The story begins on 17 April last year, when, in another place at the ping-pong stage, the then Lord Chancellor made an important concession to ensure that the LASPO Bill got through. An amendment had been put forward there to allow legal aid for welfare benefit reviews and hearings, supporting an amendment already agreed in this House and moved by the noble Baroness, Lady Doocey. To prevent that amendment succeeding, the Lord Chancellor made it clear that Her Majesty’s Government would compromise and allow legal aid for legal advice at First-tier Tribunals in cases where a point of law arose. He wanted time to ask his department about the best way of implementing the pledge. He was given that time, in due course the Bill became law, and we waited for the pledge to be implemented.
A Written Ministerial Statement appeared on 18 September last year. Surprisingly, this Statement did not announce how the major concession, which had been pledged by the Lord Chancellor, had been put into effect. Instead, in its place, a new—I would say minor—concession was announced that would affect many fewer people but would arise in a limited number of cases before the First-tier Tribunal. These were called errors of law cases, and according to a parliamentary Written Answer given to me by the Minister on 23 November last year, there were 692 errors of law cases in the year 2011-12, and 173 between April and June 2012. Of course, not every case would involve legal aid being granted, but—this is important
in my submission—some would. If no one was to benefit, why would the Government have put forward this minor concession at all?
As the Minister just told us, on 3 December last year, the Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2012, which included the minor concession, was debated in your Lordships’ House. I tabled an amendment that declined to support the regulation because, first, it did not fulfil the Government’s undertaking in the Commons on 17 April and, secondly, it would mean that claimants would not receive legal help on a point of law. The debate followed. It was crystal clear that all those who spoke in favour wanted the Government to withdraw the regulation and come back with something a little more generous. They were definitely not arguing for there to be no concession of any kind, which would have been an absurd position for them to have taken. We were saying to the Government, “Keep your word, and if you can’t do that, come back with something a bit more generous”. My amendment was supported by speeches from around the House, including those of the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lord, Lord Pannick; and, from the Liberal Democrat Benches, those of the noble Lord, Lord Phillips of Sudbury, the noble Baroness, Lady Doocey, and other noble Lords. In the event, the Government refused to do what was asked, and the regulation was defeated, by 2,001 votes to 191.