Civil Legal Aid (Merits Criteria) (Amendment) (No.3) Regulations 2013
The Committee consisted of the following Members:
† Barclay, Stephen (North East Cambridgeshire) (Con)
† Dowd, Jim (Lewisham West and Penge) (Lab)
† Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)
† Hemming, John (Birmingham, Yardley) (LD)
† Huppert, Dr Julian (Cambridge) (LD)
† Jowell, Dame Tessa (Dulwich and West Norwood) (Lab)
Paisley, Ian (North Antrim) (DUP)
† Phillips, Stephen (Sleaford and North Hykeham) (Con)
† Reckless, Mark (Rochester and Strood) (Con)
† Rutley, David (Macclesfield) (Con)
† Slaughter, Mr Andy (Hammersmith) (Lab)
† Stevenson, John (Carlisle) (Con)
† Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
† Syms, Mr Robert (Poole) (Con)
† Turner, Karl (Kingston upon Hull East) (Lab)
† Vara, Mr Shailesh (Parliamentary Under-Secretary of State for Justice)
† Winnick, Mr David (Walsall North) (Lab)
† Wood, Mike (Batley and Spen) (Lab)
Anna Dickson, Committee Clerk
† attended the Committee
Tenth Delegated Legislation Committee
Wednesday 19 March 2014
[Mr George Howarth in the Chair]
Civil Legal Aid (Merits Criteria) (Amendment) (No. 3) Regulations 2013
2.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): I beg to move,
That the Committee has considered the Civil Legal Aid (Merits Criteria) (Amendment) (No. 3) Regulations 2013 (S.I., 2013, No. 3195).
May I say what a pleasure it is to serve under your chairmanship this afternoon, Mr Howarth?
Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishes the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third-country national or stateless person. Those criteria and mechanisms are known as the Dublin III arrangements, under which the UK can apply for another member state to consider an asylum application and provide appropriate protection if that application is successful, where an individual’s first point of entry into the European Union is that other member state but an application for asylum is made in the UK.
Under the arrangements, if the financial means of the individual and merits of the case justify it, a member state is required to provide free legal assistance and representation in relation to an appeal or review of certain decisions made under the Dublin III arrangements, which replace those set out in Council regulations (EC) No. 343/2003 of 18 February 2003, known as Dublin II. We have routinely provided legal aid in relation to Dublin II matters.
From the Ministry of Justice’s perspective, the key difference between the old and new arrangements is that the requirement to provide free legal assistance for certain appeals, which in England and Wales is met through judicial review, is made explicit. The explicit provision in Dublin III for legal aid prescribes the merits test to be applied. The regulations amend the Civil Legal Aid (Merits Criteria) Regulations 2013 to give effect to that merits test.
The merits criteria are tests that the director of legal aid casework must apply in deciding whether an individual qualifies for civil legal services. The regulations allow for the merits test set out in Dublin III to apply—namely, the prospects of success of an individual case must be judged to be greater than “no tangible prospect of success”. The regulations therefore make provision to ensure that we meet our international obligations, changing nothing else.
The Committee will be aware that the Ministry of Justice laid an urgency statement alongside the regulations, so that they could come into force without delay, under the procedures set out in section 41(9) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012. Owing to an administrative oversight, my officials failed to recognise that there was a subtle difference between the merits test prescribed in Dublin III and the existing tests generally applied to applications for judicial review, in which the prospects of success must be at least moderate. By the time that the oversight was recognised, insufficient time remained to make the necessary changes via the standard draft affirmative procedure.The urgency procedure was used to ensure that the appropriate test applied from when the Dublin III arrangements came into effect on 1 January this year. Therefore, there was no risk of an individual being unfairly disadvantaged by having the incorrect test applied to their application for legal aid. I hope that my explanation has been of assistance, and I therefore commend the regulations to the Committee.
2.34 pm
Mr Andy Slaughter (Hammersmith) (Lab): It is a pleasure to serve under your chairmanship, Mr Howarth. I do not intend to detain the Committee for any great length of time; nor do I intend to make a point about what the Minister candidly said was the consequence of an administrative oversight by his officials—namely, the need to use the urgency procedure—save to say that there seems to be a clear difference between “no tangible prospect of success” and the prospects of success being “at least moderate”. That is what lies at the heart of the need for the regulations.
Clearly, the test is slightly more generous in relation to the requirements under Dublin III, as provided for by the regulations. No credit is owed to the Government for that. They are following what they have to do under European law. I have no doubt, particularly having listened to the Lord Chancellor yesterday evening in the Chamber, that the Government will do everything that they can to escape European law on every possible occasion, irrespective of the merits. But the regulations are clearly necessary, and it is good that that has been realised, even belatedly.
The only matter I would briefly draw to the Minister’s attention, without any pleasure, is the fact that, once again, we have a censure from the Joint Committee on Statutory Instruments. Its 19th report
“draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with Statutory Instrument Practice in one respect, and fail to accord with proper drafting practice in another respect.”
Those may seem like technical points, but they are important. The first point relates to the italic headnote and specifically that it did not
“indicate the period at the end of which the Regulations will cease to have effect if not by then approved by resolution of each House.”
Dates and times are important, particularly if proper scrutiny is to be given and we are to know exactly what the ambit of the regulations is. Equally, getting the title wrong, which is effectively what happened here, or at least producing a title that could have led to confusion because of the order in which regulations are taken, is not helpful. The Ministry of Justice makes so many regulations at the moment that we are involved in such Committees once or twice every week. Under the LASPO Act alone, there are a whole raft of regulations.
If scrutiny is to be done properly, we need to have proper guidance from the Government on where to find accurate information. Regrettably, almost every instrument that we consider has some defect in its drafting and some procedure has not been followed. That is not only my view; as the Minister will know, we were here two days ago and a former Conservative Cabinet Minister lamented the poor quality of the information that was available in relation to that statutory instrument. I will simply say that the MOJ needs to get its house more in order. Those are my only comments.
2.38 pm
Mr Vara: It is deeply regrettable that the hon. Gentleman decides to spend more time on a minor technicality that was put right by my Department than on the substance to be debated. I strongly disagree with his assertion that almost everything that comes up for debate has something wrong with it. He really needs to get his priorities right. In his reference to yesterday’s debate, he was basically recycling something that he mentioned in a previous debate as well. As far as the substance is concerned,
as I said in my opening remarks, there was a technical error. It was put right. No wrong against any individual occurred. All matters were covered. It is deeply regrettable that the hon. Gentleman’s mindset is more concerned with criticism than substance.Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): As we are only here because of an error, is it inappropriate to point out that errors should not occur?
Mr Vara: It is good to see the hon. Lady, who speaks with much experience. Is she suggesting that the Labour party made no errors in the 13 years that it was in government? People should be wary about taking a holier-than-thou attitude.
The regulations represent a minor fine tuning of the legal aid system to ensure that it remains compatible with our European obligations.