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Rights to representation: financial eligibility

Mr. Heath: I beg to move amendment No. 1, in page 3, line 21, at end insert—



'(5)   The provision which may be made under sub-paragraph (4)(c) includes provision prescribing circumstances in which the person or body reviewing a decision may refer a question to the High Court for its decision.



(6)   Section 16 of the Supreme Court Act 1981 (c. 54) (appeals from the High Court) shall not apply to decisions of the High Court on a reference under regulations under this paragraph.'.

Two improvements were made to the Bill in the other place. One was to extend the appeal in the interests of justice and the second was to introduce the capacity for an appeal on the grounds of financial eligibility. It is the latter to which we now turn. I still prefer the proposals made by Lord Goodhart in the other place and I regret that the Government were not able to accept them. However, in Committee I told the Minister that I was prepared to consider ways in which we could accomplish at least part of our objective by another route that was more acceptable to her and the Department. She was kind enough to suggest that we could have further discussions on that matter, and I pay tribute to her advisers who met with me to consider possible alternatives.

The amendment is a compromise based on those discussions, and that is how Parliament should work. A Minister has a position and Opposition Members have a contrary position, and if it is possible to reach an accommodation—sometimes it is not possible—we should seek to do so, especially if it improves the legislation.


 
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The objections that the Minister raised in Committee were threefold. First, she was concerned that we should not have appeals based simply on the arithmetic of the Legal Services Commission. If financial eligibility is simply a question of adding up the sums and coming to a conclusion, it would be wrong for judicial arbitration to be used to decide whether the sums were done properly. That was, as the Minister put it, an administrative matter and an administrative review was the right way forward.

The second concern was that a right of appeal against the financial eligibility conclusions of the commission might lead to vexatious appeals and, therefore, not only a slowing down of the system, but additional costs, without any gain for the outcome as far as the appellant was concerned. There was an additional and more subtle point that if an appeal against a decision of the Legal Services Commission was made to a magistrates court, the court would hear it on the basis of the advice of the clerk to the justices who had made the original decision. That seemed to be a rather circular process that would not get us much further.

It is my strong view that there are occasions when the determination of a person's financial eligibility can be open to doubt when it is judged against the specific criteria laid down by the Legal Services Commission. The system involves a bureaucratic exercise and when dealing with any set of regulations, as we know, there will be exceptions when people do not fit neatly into arrangements. For example, a person might have a nominal income that could not be used because there was a challenge in law regarding the person's right to that income, or because it was being paid into a bank account in a country to which the person had no access, so the funds could not possibly be used to support the representation. It was my concern all the way through to ensure that in such exceptional circumstances, there could not be simply an iteration of the bureaucratic system of the Legal Services Commission to produce a negative outcome when the interests of the person applying for legal aid would clearly be served by a successful outcome, although that could not be achieved by administrative review.

The Minister said from the start that everything is open to judicial review, which is of course right. It could be argued that judicial review might satisfy the article 6 test, although I am not entirely convinced. However, the problem is that judicial review is expensive and slow. A person in such a position would be in a catch-22 situation of not having the funds to mount a defence case, but needing to find funds to undertake judicial review to unlock funds for that defence case. That would be impossible, so it would be an unsatisfactory position.

The amendment satisfies my basic requirements and I hope that it satisfies those of the Minister, too. We are suggesting that when a question of financial eligibility that falls outside the strict criteria arises—when a doubt arises in law, or because of other circumstances, about whether the financial criteria should apply—there should be a duty on the Legal Services Commission to refer the matter to the High Court for adjudication. Under such circumstances, the High Court could
 
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determine the funds that should be properly considered under the criteria of the Legal Services Commission and make an award of representation.

The importance of the process is purely that it is a means for appeal, albeit one that is filtered by the Legal Services Commission. There would be a route for circumventing bureaucracy in the exceptional circumstances that I have predicted. The advantage for applicants would be that they would still have the capacity to obtain judicial review on the decision of the Legal Services Commission. If the commission unreasonably decided not to refer a case to the High Court, that decision could be subject to judicial review.

Amendment No. 1 addresses the exceptional circumstances that were in the mind of my noble Friend Lord Goodhart, although the situation is not as satisfactory as it would have been if his amendment had been acceptable to the Government. I again pay tribute to the Minister and her officials for listening carefully to the points that I have made to allow us to come up with an amendment that should represent an agreed solution. I commend the amendment to the House and hope that it will satisfy those in another place who take an interest in such matters.

Keith Vaz: I will speak only briefly to welcome the amendment. I think that it is the sensible way forward. I, too, would have preferred a provision to allow the right of appeal. I understand that there will be exceptional circumstances. I very much hope that the Government will accept this sensible amendment.

Mr. Djanogly: It is at this stage that we see the real implications of the programme motion. I want the Minister to have time to reply, so I shall be brief.

As for the amendment, I have a certain feeling of déjà vu. It has been the determination of the Government to eliminate the appeal process, which was astutely introduced by my noble friends and Liberal peers in the other place. Once again, I feel obliged, as was the case with the hon. Member for Somerton and Frome (Mr. Heath), to reiterate our belief in the importance of an appeal process forming part of the Bill, and in turn upholding the principle of access to justice. However, in the light of the amendment, it seems that we have a compromise. I welcome that to the extent that a right of appeal is not completely removed from the Bill, as would have been the case otherwise. For that, I am grateful.

I must reiterate the importance of an appeal process rather than simply having a judicial review process that the Government seemed to want to stick by. Our noble friends and Opposition peers in the other place felt it appropriate to allow for an appeal process in relation to the eligibility test reintroduced by the Government. We welcomed that because we believed that it was important that the courts should be able to hear appeals on the interest of justice test as well as on the eligibility test, and that the courts should be able to consider these matters afresh.

We therefore found the Government's decision to overturn the amendment moved in the other place to be irrational and potentially damaging to the Bill, but in essence we give our support. I note that Members from all parties, including the hon. Member for Leicester, East (Keith Vaz), have come to roughly the same position.
 
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Their noble Lords ultimately understood the complicated nature of an eligibility test that cannot be accurate on every occasion. The Government stated in their supplement to the framework document that there will be regulations for the consideration of cases in which exceptional circumstances require funding for those who do not meet the eligibility criteria, but not by appeal.Page 12 of the supplement states that the test is whether the cases require a fine judgment that warrants the intervention of the courts. Surely exceptional cases meet that test.

The Government seem to resist the Lords contribution on the foundation that it is a waste of court time to have to deal with administrative matters. That they are administrative is quite clear. However, the Government should consider the circumstances recognised by their lordships in the other place whereby a defendant's financial, legal and social means fall not within the realms of administration but within the remit of the administration of justice.

The Government have conceded that there are exceptional circumstances where the eligibility test does not simply apply to factual issues, but say that these can be dealt with simply by judicial review. To our mind, that is misguided. The process of judicial review is too cumbersome suitably to address the rights of those whose plight has been worsened by non-financial issues under the merits test. Judicial review demands a new and separate process that can only prove more costly than referring back to a judge or court that has already dealt with the matter.

Hon. Members may now appreciate that the potential compromise that the amendment presents is not one that we would see as the perfect answer to an issue on which we have argued strongly throughout the passage of the Bill. At the same time, we can accept an amendment that provides a platform for referring the question to a court. With the amendment, we accept that nothing will be lost by the defendant and that in the correct circumstances the correct decision will be reached.

3.30 pm


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