My Lords, Amendment 176 raises an issue of some constitutional importance. The proposed new clause would prevent the Lord Chancellor using the powers that he was granted under the Legal Aid,
Sentencing and Punishment of Offenders Act 2012, or LASPO, to restrict eligibility for legal aid in judicial review proceedings. Your Lordships will recall that during the debates on LASPO Ministers repeatedly assured the House that the restrictions on legal aid contained in the LASPO legislation did not affect judicial review. Had the Bill made express provision restricting legal aid for judicial review, I think that Ministers would have found it difficult to secure the approval of the House for such provisions.
Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation so that such proposals could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. Such subordinate legislation, as your Lordships well know, receives only limited scrutiny in this House. Detailed amendments cannot be tabled and debated, and the convention is that we very rarely indeed table, far less approve, a fatal Motion. To give one example of the problem, on 7 May your Lordships’ House debated a Motion of Regret that I had tabled in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.
Restrictions on legal aid for judicial review are far too important a matter for secondary legislation. If the Lord Chancellor wants to restrict the scope of legal aid in the context of judicial review, let him bring forward proposals in primary legislation. Those proposals can then be properly scrutinised and amended as appropriate. The purpose and effect of Amendment 176 is to secure that objective, and I commend it to the House.
Amendment 177 would introduce a further new clause to prevent the Lord Chancellor implementing a residence test for legal aid in judicial review proceedings. If I may, I will leave the noble Lord, Lord Beecham, to explain the purpose of that amendment, which I support. I beg to move.