Clause
22
Tribunal
Procedure
Rules
Mr.
Bellingham:
I beg to move amendment No. 65, in
clause 22, page 19, line 38, at
end insert—
‘(za) that the
interests of justice are
achieved,’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 66, in
clause 22, page 20, line 1, after
‘expressed,’,
insert—
‘(da) that the
tribunal system complies with the European Convention on Human
Rights,’.
No.
68, in
clause 22, page 20, line 5, leave
out ‘(4)(b)’ and insert
‘(4)’.
Mr.
Bellingham:
This is a modest point and concerns the powers
to make procedural rules for tribunals. A number of categories are set
out in clause 22(4)(a) to (e), which we think could be strengthened by
adding an expression relating to the achievement of the interests of
justice. I imagine that the Minister will say that the achievement of
the interests of justice underlies every
measure in the Bill, but I would suggest that having the words contained
in amendment No. 66 in the Bill would send an important message and
that the Bill would be stronger as a
consequence.
Simon
Hughes:
There are three amendments in this group and I
want to speak specifically to amendments Nos. 66 and 68. The hon.
Member for North-West Norfolk moved amendment No. 65. I anticipate that
the Minister will say that that amendment does not materially change
what is currently in 22 (4) (a), which also talks about justice.
However, does she not agree that the amendment is slightly wider and
therefore slightly better? Also, an important point in the amendment
establishes that every part of the judiciary and the judicial process
complies with the European convention on human rights, which states
that people must have access to justice and a fair trial—either
civil or criminal. The amendment is a link to amendment No. 67, which
comes in the following
group.
When we come to
debate the next group, which is specifically about legal aid
provisions, it is important to see the amendments as part of the debate
about access to justice and compliance with the European convention. If
the Minister can satisfy us that all aspects of the tribunal system
have been checked and proof read for ECHR compliance, as every Bill is
required to be, and that all the rules issued to the tribunals are
satisfactory, then we will have to accept that for the time being. Does
she not think that it would be better to have that sort of statement
within the Bill? In that context, I want to ask the wider question. For
those who know the workings of the civil and the High Courts relatively
well, they will know that there are two books of rules that are used by
all practitioners, including judges and lawyers. One is a large white
book for the High Court and the other a smaller green book for the
lower courts, which is known as the county court book. Many of the
rules governing the courts are in those two books rather than in
primary legislation. Why, in this case, was the judgment made to put
slightly more of the detailed rules into primary legislation than
Governments normally wish to do? Is there an exact comparison that has
been done to make sure that we are doing here what we have already done
in the High
Court?
I’m
always keen that we have Bills that are as short and as simple as
possible. Matters that are entirely technical should be in secondary
legislation—unless they are of significance—and in rules
if they are of importance to practitioners but not to members of the
public. I would be grateful to know what led the Minister to make the
judgment that we need as much of the regulation of the process in
primary legislation, of which clearly this is
part.
Vera
Baird:
Amendment No. 65, which was moved by the hon.
Member for North-West Norfolk, adds an interest of justice test to the
list of principles that the tribunal procedure committee should keep in
mind when making rules. Lord Kingsland, the colleague of the hon.
Member for North-West Norfolk, moved an amendment with exactly the same
effect in Grand Committee in the House of Lords. The Government
accepted, as I do now on behalf of the Government in this House, its
general intention in principle. An
alternative more in keeping with the drafting of the Bill was offered to
Lord Kingsland and he tabled the draft on Report, which is now clause
22 (4) (a). It would be extraordinary to add to the Bill the
alternative which Lord Kingsland rejected in favour of 22 (4) (a).
Therefore, I do not think that we should entertain the prospect of
doing that.
The hon.
Member for North Southwark and Bermondsey gave almost the same answer
that I have given to amendment No. 65, although he asked whether the
provision proposed by the hon. Member for North-West Norfolk was not
wider and therefore better. However, Lord Kingsland was satisfied that
the term “ensure that justice is done” was just as good
as “acting always in the interests of justice”. I am
inclined to agree.
On
the further amendments to which the hon. Gentleman spoke, it is exactly
as he said. Of course, the tribunal system and the provisions of the
Bill have to be convention-compliant. As the hon. Gentleman said, all
Bills have to be considered in detail to ensure that they are
compliant, and they are considered in that way before the
Minister—in this case, me—signs to say that they are
compatible with the European convention. To add something saying that
the Bill shall comply with the European convention is pointless. As the
hon. Gentleman, who is an experienced Committee member, knows, if
something odd and unnecessary is included in a piece of legislation to
make things clearer, the next piece of legislation that does not
include it is always called into question. There is nothing to be
gained from adding such a thing to the Bill and it would add not one
iota to its human rights
calibre.
Amendment
No. 66 would ensure that the rules are compliant with the ECHR. One
could say that they may have to be all the more compliant than the
legislation. The legislation could be declared incompatible if it were
not compliant and, anyway, hon. Members would not want to bring into
play legislation that was not convention-compliant. Subsidiary
legislation could be overturned by the judiciary if it were not
compliant, so the tribunal procedure committee will have to ensure that
it is
convention-compliant.
Is
there more detail about this matter in the Bill than is normal? There
is no intention that that should be so. We intend the level of primary
and secondary legislation to be broadly similar to that which is
customary. I invite the hon. Member for North-West Norfolk to ask leave
to withdraw his
amendment.
Mr.
Bellingham:
In the light of what the Minister said, I beg
to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Bellingham:
I beg to move amendment No. 67, in
clause 22, page 20, line 4, at
end insert—
‘(4A) The
Tribunal Procedure Rules shall make provision for the granting by a
judge of the First-tier Tribunal of legal aid for appropriate advice
and representation in relation to any decision within the jurisdiction
of the tribunal
system.’.
The
Chairman:
With this it will be convenient to discuss
amendment
No. 69, in
clause 22, page 20, line 4, at
end insert—
‘(4A) The
Tribunal Procedure Rules may allow for the provision of legal
aid.’.
Mr.
Bellingham:
The amendments, which both say basically the
same thing, would give the Minister a degree of choice. They would
introduce a provision whereby the tribunal procedure rules may allow
legal aid to be granted by a judge of the first-tier
tribunal.
We are
having a wide-ranging and, at times, passionate debate about the way in
which the legal aid changes proposed by the Government are being
implemented. I do not want to go down that route. However, it has
struck me for a while as slightly bizarre and unfair that people cannot
get legal aid for cases in tribunals, except in a few circumstances.
There are a number of exceptions. I gather that in the Lands Tribunal,
for example, people can get legal aid. Perhaps the Minister will
comment on whether legal aid is available in other
tribunals.
We should
not like to include in the Bill the power to grant legal aid
automatically, because that would be a step too far. I am well aware,
as are other Opposition Members, of the pressures within the Department
for Constitutional Affairs. We realise that there are pressures on the
legal aid budget, which has increased from £1.5 billion 10 years
ago to more than £2 billion, and we understand why the
Government are now bringing in means-testing in magistrates courts and
the fixed-fee system for many civil cases. Although we have some
legitimate discussions and arguments with the Government about how that
is being implemented, we accept the thrust of what they are doing.
However, in respect of tribunals, I should imagine that it would be
appropriate for legal aid to be awarded only in a very small number of
cases.
2
pm
A lot of the
time lawyers are not wanted in tribunals. We want people to take their
case to tribunal and feel that they are performing and presenting their
arguments in an informal and relaxed manner, and that they can put
their case without any pressure or undue sense of the occasion getting
on top of them or stifling their free expression and explanation of the
problem. I submit that lawyers often come along and make the matter a
whole lot worse. They can give the client a lot of ideas, stand up and
make boring speeches on points of law, whereas what we want is for the
public to go to those tribunals and feel that they can have their cases
heard sympathetically and understandingly by tribunal chairs who can
emphasise with the
public.
I would have
thought that, in the vast majority of cases, there would be no need for
the provision of such legal aid. However, there are going to be
tribunals—I certainly came across a few during my time at the
Bar—in which there are points of laws and complexities. There
may even be situations in which a particular case suddenly becomes
multi-faceted and unanticipated factors suddenly come into
play.
In those
circumstances, it might be in the applicant’s interests to seek
legal advice. For example, there might be a fairly straightforward case
in the Employment Appeal Tribunal, or one of the other tribunals such
as the Asylum and Immigration Tribunal, where the case is proceeding
quite smoothly and it all looks straightforward, but complexities then
arise. At that stage, will the applicant be denied the ability to deal
with the matter on a roughly level playing field?
I submit that there will be
cases in which respondents might be a corporate entity or a Department.
One has only to look at those families in various cases involving the
Ministry of Defence. In one case, the MOD employed a host of lawyers
and QCs. I am thinking not about a coroner case, but about a tribunal
case for injuries caused not in the front line, but during training. I
read that the Department in question had a battery of lawyers and the
case went from being quite straightforward to being complicated. Yet,
the family were unable to get legal aid.
If the tribunal rules allowed
for the grant of legal aid by the judge in the first-tier tribunal, it
would at least mean that the applicant had a much fairer deal and would
not have to suddenly abandon the case. The applicant might be
completely overwhelmed by paperwork, legal points and legal statutes
that they have absolutely no idea how to handle, however sympathetic
the tribunal judge or its non-legal members might be to
them.
Despite the
expertise and the background of the people involved, and however much
they might try—the Minister has made a great deal of their
attitude and their desire to help the public and be as open, flexible
and user-friendly as possible—things might become very difficult
if one starts getting bogged down in technical legal matters.
Precedents might need to be looked at and other tribunal decisions
might need to come into play. It might be that such factors are not
always something that the tribunal judge can help the applicant
with.
That is why
legal aid might be appropriate in a small number of cases. In that
small minority of cases, building such flexibility into the system
would bring significant relief to the applicant. It would make the
system fairer and more just for a very small number of applicants and
cases. I do not believe for one moment that it would have a significant
impact on the legal aid budget. When we look at that budget in the
round—I might now be told off by our shadow Chief Secretary for
making a spending commitment—it is clear that we are talking
about a small sum of money. I am a great believer, as are my hon.
Friends, not only in getting the best value possible, but in using
public money to make a difference to some of the more oppressed and
vulnerable people in society.
A number of hon. Members have
spoken about how tribunals are very often the only point of contact
that members of the public have with the judicial system. The chances
are that the tribunal system is the only interface that many of our
constituents will ever have with the judicial system, unless they
happen to end up in a magistrates court for some minor criminal
offence. People who go to tribunals are not criminals; they are
applicants—people pursuing their case to try to secure justice
for themselves and their families.
We have given the Minister a
choice of two amendments, which I hope fits in with the spirit of the
Committee. Both amendments are by definition broad and flexible. In
fact, amendment No. 69 is more flexible than amendment No. 67. I hope
that the Minister will accept the amendments not only in the interests
of providing extra assistance and making the system more open and
flexible, as the new structure will do, but to ensure that no one is in
any way excluded from putting their case.
Simon
Hughes:
This is probably the most important amendment that
we have debated so far. It has the support of the Liberal Democrats,
the Conservatives and, I hope, some on the Labour Benches. Even hon.
Members who are not lawyers, as some of us are, will have come across
in their constituency work cases in which the decision of a tribunal
cites legal cases. That goes for both the oral and subsequent written
tribunal decisions. In tribunal hearings in which lawyers are
present—the system is not set up on the presumption that lawyers
will normally be present—there is often quite robust debate
about the application of cited cases, which could be judgments from the
House of Lords, the European Court, the Court of Appeal and so on.
Judgments from the Employment Appeal Tribunal or a higher court that
dealt with an employment appeal case might also be cited. It is
therefore sometimes necessary for people to have legal assistance to be
able to put their arguments.
Some people go to tribunals
literally on their own, with no support, and some go with family
support, friends or non-legal support from their local advice centre or
citizens advice bureau or whatever. Normally, people will go with no
lawyers accompanying them, which is as it should be. The best person to
judge whether people should have an entitlement or need to receive
legal aid is the person running the tribunal—the judge figure
whom we have discussed. I have signed my name to amendment No. 67,
would give such discretion to the judge, and amendment No. 69 would
have the same effect.
The Minister said that there
are provisions for Ministers to grant legal aid exceptionally, but that
is an exemptive decision. The Opposition are arguing that in the
interests of justice it is necessary, and would be better, for the
granting of legal aid sometimes to be a judicial decision. Such
decisions could be made on the spot, with the judge having assessed the
nature of the case and rated a person—the lay
applicant—and their ability to put their case against a
representative of the Department for Work and Pensions or whoever is on
the other side. There is often an official on the opposing side of a
tribunal who is fully versed in the legislation and regulations, and
who carries a double ring binder file. The tribunal itself will have
ring binder files, as will the clerks, and they will contain
information on the law, not only matters of fact.
There are strong arguments for
the amendments, and it is clear to us that a system of fair access to
justice must ensure that people are not disadvantaged. It is good that
we are to have a new, streamlined, expanded tribunal system. However,
if this area of administrative law is to be separate from the court
system, the possibility of people getting legal aid should not be less
than in the elements of the legal system that consider matters of
criminal, civil and other areas of administrative
law.
As the Minister
said, magistrates do not deal only with crime. They deal with
administrative and licensing matters, civilian disputes and family law,
in all of which there is an entitlement to legal aid. There is a strong
case in principle for such issues. The proposed approach would not be
an open door. We are not saying that we want legal aid as a matter of
right for
tribunal cases, but arguing that it should be the
norm that the judge on the case has the power to make such a
judgment.
Yes,
there is a financial implication, but justice always has financial
implications. I hope that the Minister will not resist the amendment on
the basis that it would have an unhelpful or harmful financial
implication. There have been debates elsewhere on legal aid and its
budget. I accept that it is larger than in some places and that it has
grown. However, it has not grown in the same way as much of the welfare
state has grown. It has grown less, and there is a strong case for
justice being done with legal aid when the judge thinks that that is
right. I hope that the hon. and learned Lady will be sympathetic to the
amendment. It is certainly something that we want to
pursue.
Vera
Baird:
I shall deal first with the latter two points made
by the hon. Member for North Southwark and Bermondsey. It is not the
case that the legal aid budget in the United Kingdom is larger than in
some places. It is larger by a very significant factor than anywhere
else in the world. I shall leave it there, having made that important
point.
I
sympathise enormously with the passion with which the hon. Gentleman
and the hon. Member for North-West Norfolk assert the right for
fairness in access to justice. It is a passion that I share and which
the Government accept entirely. It is a bit of an oddity that the hon.
Member for North-West Norfolk has sought to introduce such a provision
when an identical amendment was defeated resoundingly in the other
place, because the Tories did not vote for it. However, that does not
alter the merit in its being discussed
today.
I shall
reiterate the points made during the debate in the House of Lords. The
tribunal system is intended and designed so that people should not, as
a rule, need lawyers to pursue their points. As we have said in a
different context today, tribunals are not courts. Unlike courts, most
tribunals do not rely on the strict rules of evidence. They adopt a
much more inquisitorial approach, questioning the user to find out the
relevant information rather than expecting him to put his case or
present an argument. Granted the high level of skills that we have
acknowledged in tribunal chairs, the majority of tribunal users should
be able to, and can with experience, relay their evidence by answering
questions without the need for legal
representation.
For
those who qualify within the legal aid system anyway, legal help is
available across the whole gamut to give advice and assist the users to
prepare their cases and answers to questions that might be asked. Legal
advice can be obtained about points of law and help can be received to
pay for counsels’ advice. That does not present a problem. Aid
is readily available in that fashion and it can pay for everything up
to its limit to prepare a person for a tribunal, short of their
actually being
represented.
Both
hon. Gentlemen argued strongly that we do not want lawyers to be in
tribunals as a matter of course. The right hon. Member for
Berwick-upon-Tweed (Mr. Beith), the Chairman of the Select
Committee on Constitutional Affairs, said the same on Second Reading:
we do not want representation in tribunals as a matter of course. I am
glad that both Opposition spokesmen understand and share that
view.
2.15
pm
We must ensure
that people have enough information as users, so that they understand
that they can get advice if they need it and understand what they need
to do to ensure that they put their best foot forward. We will work on
that.
We acknowledge
that legal aid for representation has a role in some tribunals. It is
not available in the Lands Tribunal now, but it is available in the
Asylum and Immigration Tribunal, the Employment Appeals Tribunal, the
Mental Health Review Tribunal and in cases of special difficulty in all
tribunals. If a case falls within the provision that I have mentioned
already—section 6(8)(b) of the Access to Justice Act
1999—legal aid can be granted exceptionally for representation.
That will apply in a minority of cases, because in most circumstances
tribunal users should not need representation for a just outcome. None
the less, legal aid is available in exceptional circumstances, as we
have already
discussed.
I
imagine that, if a case suddenly became more complex than anybody could
have predicted, one of two things would happen: either the inquisitor
judge would adjourn so that legal help could be obtained—along
with counsel’s advice or whatever were necessary to ensure that
the legal points that emerged were advanced in a proper fashion in the
applicant’s interests—or he would write, as many coroners
do, in support of an application for exceptional circumstances, so that
a Minister could consider granting legal aid. With those two fall-back
positions available, the situation is not immensely
troubling.
Simon
Hughes:
I hope that the Minister accepts that both
situations happen as a matter of practice
sometimes.
Simon
Hughes:
Both would require a delay, as the case would have
to be interrupted and the application would have to be considered, then
accepted or rejected. If a judge is able, at the beginning of a case or
at any stage, to assess whether a case would need legal aid, to make
the decision then and implement it would be much quicker for the
tribunal and much quicker and more certain for the individual in terms
of the remedy. It is the judge who can assess that. Experienced judges
will be able to make such assessments on the
spot.
Vera
Baird:
The hon. Gentleman slightly contradicts himself. If
it is obvious to the judge at the beginning that a case is complex, an
adjournment in the middle, with a consequent delay, will not be
necessary, because he can make it clear that legal aid should be made
available and he can either suggest that the applicant seeks legal help
or he can support an application for exceptional circumstances. Given
the experience and calibre of tribunal judges, it would be a rare case
that suddenly multiplied out of all recognition into a complex legal
issue, thereby meriting an application in the middle of it. However, if
that were so, everybody’s view would surely be that it was
essential that the person had the opportunity to be represented. In
such an extremely rare case, it would undoubtedly be the
norm for the inquisitor judge to adjourn and support an application for
full legal aid or advise the applicant to get legal help. We would like
to do more. I think that I said that clearly on Second
Reading.
Like the
hon. Member for North-West Norfolk, I do not want to stray into the
generality of legal aid reform at present, but it is well known that we
intend to put lawyers on to fixed fees for standard cases, starting
very soon this year, with only exceptional cases being paid for by the
hour thereafter. That should make the legal aid budget become more
predictable, which would strengthen our arm in respect of having
resources available to be moved
over.
It would be our
intention, as I have said time and again—and I have no
difficulty saying it once more—that such resources should move
over into the welfare sector, with which the tribunals basically deal.
Whether representation in tribunals is the right place to put those
resources or whether they are put elsewhere would be a matter for
discussion at that point. I hope that Opposition Members will accept
that there is an adequacy of provision within the present system and
that when resources are made available by the reforms that we are
currently implementing, the intention is to put them into this sector.
I hope that the hon. Members will withdraw their amendment, which was,
as I have already said, resoundingly defeated in the House of Lords and
I fear will suffer the same fate in
Committee.
Simon
Hughes:
Has the Minister the figures—either numbers
or costs—that tell us how many cases under the present regime
are given legal aid through the exercise of ministerial discretion?
What sort of number is it for the past
year?
Vera
Baird:
I cannot help with that. I know that I get one or
two cases a fortnight to determine. They are mostly coroners’
inquisitions with the occasional tribunal case. I do not know whether
that is a fair representation, but we will look into it and give the
information to the hon. Gentleman if we
can.
Simon
Hughes:
I was being generous and trying not to
divide the Opposition by not reminding the hon. Member for North-West
Norfolk that his party did not support the proposal in the other place.
However, I am glad that such enlightenment has come its way as the Bill
has moved down the Corridor. That is always to be welcomed. Progressive
conservatism often moves more quickly now than it did in the
past.
I am very clear
that this is right as a matter of principle and is something that we
should pursue. I heard what the Minister said on Second Reading and
accept her intention that this is an area of law in which practice will
feature and in which the Government hope there will be more resources
to assist with legal aid and advice as appropriate. I want to make one
comment on the practicality of the arrangements, which the Minister
cited as her explanation why we do not need the system at the moment.
If an issue was spotted on the papers by the judge at the very
beginning of a case, then it would require the hearing to stop and
start and be adjourned and start again. It
may even put back the date when a case is dealt with. When the papers
arrive at the tribunal in the normal way and an issue is spotted, there
will be a delay, even if it is not the interruption that we are talking
about. If a legal case arises during the hearing, then that is
interruption and delay. In any event, it seems that
that process is one that takes away the discretion that judges could
properly have—through hearing the argument and seeing the nature
of the applicant—to determine a case. On paper, an applicant may
appear to be competent and able to represent themselves. However, they
may not be well; they may be mentally, physically or emotionally ill.
There are all sorts of circumstances that are not intrinsic to the
case, but may become evident. The person may become distressed. They
may have a poor attention span, not be very intelligent and not able to
understand things. It seems to me that those are the sorts of reasons
where the discretion should be given to the tribunal there and then. I
am very keen that we pursue the matter and I hope that the hon.
Gentleman will agree with
me.
Vera
Baird:
It might be wise to rehearse the basis on which
exceptional funding is given because it will cover most of what the
hon. Gentleman is worried about. It is given, first, if there is a
significant wider public interest that the user be
represented—that is rather aside from what he is
saying—and, secondly, if the case is of overwhelming importance
to the user or if a lack of representation would lead to obvious
unfairness in the proceedings. Those two provisions are likely to cover
all the situations which would produce injustice if they were not
covered, as the hon. Gentleman has set out. Thirdly, it is given if it
would also be practically impossible for the user to bring or defend
the proceedings without representation. I think that he will find that
there is already provision for exactly what he is worrying about,
although not in the hands of a judge, but in the hands of the
executive.
Simon
Hughes:
I understand that. I have in mind a case involving
an allegation of unfair dismissal that I have been dealing with and
which I chose as the subject of an Adjournment debate on behalf of a
constituent. The case was clearly a matter of significance to the
individual, who had been summarily dismissed from the job that he had
been held for 25 years. The Minister is right that there are
exceptions, but as she rightly said, they are not granted at the
instigation of a judge. It seems that that is a good place for them to
be.
One could start
with the same set of criteria. Obviously, some cases are much more
likely to get ministerial certification, where a judge spots that it is
of prospective national interest, in that it will determine what the
law will be in future and will have wide-ranging implications, and
deals with a controversial issue. Such cases are likely to get through
the system but, from the perspective of the individual, cases in which
people lose their jobs or something happens that significantly affects
their finances might be another category.
I am not arguing about whether
the criteria are more or less correct; I am arguing that the judge
should have the opportunity that has been outlined. That is not a
million miles away from what the Minister would like
to happen in future. Here is the legislation that gives us the
opportunity for that to happen. I hope that we have persuaded the
Committee that it should happen
now.
Mr.
Bellingham:
If one considers the high-cost and highly
complex cases that receive legal aid, costing the legal aid budget
millions of pounds, it becomes clear that we are talking about a small
crumb in the trouser turn-ups of one or two High Court judges. It is a
small amount of money, but it would help a number of
people.
There are
three points that I should like to raise with the Minister. She
mentioned the changes in the legal aid budget and the reforms that the
Government are introducing, the bulk of which we support. We can see
exactly where the Minister is coming from and we can see the need for
reform. If the reforms lead to significant savings, could Ministers
redeploy the legal aid in other directions—including to
tribunals, for example—simply by ministerial edict or would that
require a statutory instrument? Doing that would certainly not require
primary legislation, but would it require an order in the House? Could
Ministers simply take such redeployments on board? If so, we would feel
that we could push them on the issue.
Amendment No. 67, to which the
hon. Member for North Southwark and Bermondsey has added his name,
would not exactly put a huge amount of extra pressure on the legal aid
budget. We are talking about flexibility and the final decision being
in the hands of the tribunal judge. The first-tier tribunal judge would
make the decisions and the rules would allow legal aid to be granted in
rare
circumstances.
The
Minister mentioned the rule on exceptional cases that enables the
tribunal chair to adjourn proceedings and recommend that legal aid be
granted. I would have thought that there would be an inevitable delay,
but she has not yet told the Committee what sort of delay there would
be. I take on board her point that if it becomes apparent before the
tribunal has started, or even on the first day, that exceptional
circumstances apply, it might make sense for the tribunal to be
adjourned and for a decision to be made on legal aid. However, if the
tribunal is adjourned halfway through because of the complexities that
the hon. Gentleman mentioned, how long would it take to get the legal
aid set up? I imagine that that would take at least three to four
weeks, in which time there would be a great deal of added uncertainty,
stress and worry.
We
want to make the tribunals as user-friendly as possible, but there will
always be stress and strain on the applicant. The amendment is modest
and does not ask for a great deal. Its public expenditure implications
are absolutely minimal. As I said, we are talking about a small
fraction of what is spent from the legal aid budget on the
high-complexity cases. We Conservatives would certainly want to
consider the issue in the context of our ideas for reorganising legal
aid. It would be a minor step forward.
Will the Minister answer those
points? If she does not do so in a way that we find satisfactory, we
may have to push the issue to a
Division.
2.30
pm
Vera
Baird:
The hon. Gentleman is right in saying that primary
legislation would not be required to
change the legal aid rules. The Lord Chancellor has a power to change
legal aid—presumably the funding code. Legal aid is covered by a
funding code, so that could be done by the Lord Chancellor’s
direction.
I pause to
thank the hon. Gentleman very warmly for saying that his party supports
the bulk of the legal aid reforms that we are implementing. I am most
grateful for that; his support is extremely
welcome.
As the budget
levels out and comes under control under the impact of the changes, we
will need a review of how best and earliest to start using that other
money in the welfare benefit sector. That is how we should consider the
use of that money; representation for certain tribunals in certain
circumstances might well be one way forward. However, there may be
other priorities to roll out first. To a large extent, that is why the
amendment is not
acceptable.
In the
extremely rare situation conjured up by the hon. Gentleman, the judge
would have looked at his case file and considered how he would deal
with the tribunal hearing. He would do that well ahead of time. Perhaps
he would require information to be ready for it; perhaps, in writing or
some other way, a sort of informal pre-trial review would have to be
held to tee up the way forward. Such things all happen. If, having done
all that, he had failed to see that there was a complexity, we would be
in the territory conjured up by the hon. Gentleman. However, when I set
out the process, he can see that it is pretty unlikely that that would
happen, save once in what used to be called a blue moon.
If what the hon. Gentleman
envisages did happen, one of two things might occur. First, the
tribunal chair—soon to be called a judge—might adjourn so
that the individual can get legal help. The judge might think that the
person needs not representation, but advice on a particular point of
law. That adjournment would enable the individual to go to a supplier
of legal services—a citizens advice bureau, legal centre or
solicitor—that would already be available and empowered to grant
legal help, subject to a simple means test, which is done quickly. If
legal help were needed, that could be obtained
quickly.
Secondly, the
tribunal chair might think that actual representation is necessary.
That would require an adjournment while some communication—a
letter or note from the judge or applicant—was sent to the Legal
Services Commission, which would have to recommend that the exceptional
circumstances power be used by Ministers. As soon as it had considered
the issue and made the recommendation, the issue would come before
Ministers. Such applications are often urgent. There need be no very
significant delay, although I agree that it would be much better if
such a situation were avoided. In 99 per cent. of cases, I am sure that
it would be.
I hope
that I have satisfied Opposition Members that there is adequate
provision and an intention to look again when our now well supported
legal aid reforms come to the fore. I hope that I can persuade the hon.
Member for North-West Norfolk to seek leave to withdraw the amendment,
which was abandoned by his party in the
Lords.
Mr.
Bellingham:
The Minister has said that there is every
possibility of coming back to the matter of legal
aid being available once the reforms have moved on. I feel that the
amendment would hasten that process, so I shall press it to a
vote.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 5, Noes
10.
Division
No.
1
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly negatived.
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