My Lords, this has been a passionate debate. We heard from the noble Lord, Lord Pannick, in close co-operation with the noble Lord, Lord Beecham, who, to continue the football analogy, persisted with his tactic of man-marking the Lord Chancellor. The debate was also enhanced by the contribution of the noble Baroness, Lady Campbell. My noble friend Lord Deben made a number of criticisms of ministerial colleagues for announcements. I must, and will, deal with those. My noble friend Lord Phillips told us about bygone days, when the way legal practices functioned was very different. I have, through my relations, memories of rather a different approach to the law than that which pertains now. Legal aid was certainly commonplace in the provinces then and people were charged what solicitors thought they could afford. We live in a very different era now. The noble Baroness, Lady Lister, repeated her concern at the effect of the residence test on some children in some circumstances.
Amendment 180 would bring the new clauses into effect at the end of the period of two months beginning with the day on which the Act is passed. Amendment 176 seeks to prevent the Government making future changes restricting the availability of legal aid for judicial review through secondary legislation under LASPO. Specifically, the amendment would prevent future changes being made through the powers conferred under Sections 2 and 9 of LASPO. It is important to pause here as there is a danger of confusion. Section 2 deals with remuneration and Section 9 with scope, where these have the effect of imposing further eligibility criteria for legal aid in judicial review cases, or of restricting the scope of legal aid for judicial review. The amendment also seeks to annul any statutory instruments that have previously been made through the powers available under Sections 2 and 9 of LASPO, in so far as they restrict eligibility or scope in relation to judicial review.
As noble Lords will already be aware, remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO so that where an application for judicial review is issued, the legal aid provider will undertake work on the application at financial risk, unless permission is granted or a discretionary payment is made. This point was elegantly made by my noble and learned friend Lord Mackay of Clashfern. There is, of course, a difference between scope and remuneration in this context, and that is a partial answer to the point made by my noble friend Lord Deben. A theme correctly adopted by the Government, throughout the difficult period that has persisted since they came into power, is that limited legal aid resources should be properly targeted, particularly at judicial review cases where they are needed most. The legal aid system is there to command public confidence and credibility. It was in that context that we introduced amendments to the Civil Legal Aid (Remuneration) Regulations to limit the circumstances in which legal aid providers should receive payment for work carried out on an application for permission.
It may be helpful if I explain that our figures suggest that there are a significant number of unmeritorious cases—751 in 2012 and 2013 alone—which receive public funding but where permission is refused. Therefore,
they have apparently satisfied the Legal Aid Agency that there is sufficient to justify legal aid. In fact, on the old test, they have failed to surmount the rather low hurdle of permission. This change was introduced to incentivise providers to consider more carefully whether to commence judicial review proceedings and hesitate before commencing claims that are unlikely to receive permission. In genuinely meritorious cases, the provider is still paid because the case is granted permission, the case concludes prior to permission and their costs are paid by the defendant, or, where the case concludes prior to permission and they cannot get costs, the provider can apply to the Legal Aid Agency for discretionary payment. Unfortunately, I do not think that my noble friend Lord Deben was able to be present when we had a lengthy debate on these issues, and the question of legal aid for judicial review and its limits in relation to remuneration and scope was debated.
Remuneration continues to be paid in the usual way for the earlier stages of a case to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol brought in by the noble and learned Lord, Lord Woolf, who is in his place, to discourage proceedings where the matter could be sorted out through an exchange of letters pursuant to the protocol.
I should stress that the regulations made under Section 2 of LASPO do not affect the availability of civil legal aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid.
As the amendment seeks to prevent the Government using Sections 2 or 9 of LASPO to impose further eligibility criteria for receipt of civil legal aid or to restrict the scope of legal aid, the amendment would therefore not achieve what appears to be the intended effect of, among other things, annulling the recent amendments I have referred to on remuneration. The amendment would however have the consequence of preventing the Government imposing additional eligibility criteria or restricting the scope of legal aid for judicial review, other than through primary legislation. It would also annul previous amendments debated and passed by Parliament in relation to the scope of legal aid for judicial review.
The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers, and the eligibility for and scope of civil legal aid, are subject was considered only recently by Parliament during the passage of LASPO. We continue to believe that the level of parliamentary scrutiny is appropriate.
Perhaps I may remind the House about what happened during the passage of the LASPO Bill. Parliament was assured that the scope of judicial review would not be amended, which is entirely correct, but we do not accept that the proposals we are discussing are inconsistent
with LASPO. In other words, the issue of bad faith, which is effectively alleged by my noble friend, simply does not arise. LASPO contains a very clear power to amend the scope of civil legal aid, as per Section 9, to which I referred earlier. There is no exception for judicial review.
Therefore, it is wrong to say that LASPO was enacted on the basis that the scope of legal aid would never be amended to create some sort of estoppel, as my noble friend seems to suggest.