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Baroness Wilcox: I rise to support my noble friend Lord Kingsland, because this amendment involves consumer protection and accountability to consumers for decision-making. The amendment deals with the vital information that will be given to people when a decision is made as to whether or not their case will be funded.
The new decision-making process considers a number of factors which will be given different weights depending on the priority and resources for that type of case. This process will be much more discretionary than in the past, and much more complicated. Unless the Act places a duty on the decision-maker to give clear reasons to the applicant when funding is refused, the applicant will be in great danger of not knowing what to do next.
Where the applicant is refused because there are better ways of funding or of resolving the dispute, the applicant may need help to find alternatives. During my time serving on the review of the civil Court of Appeal set up by my noble and learned friend Lord Mackay of Clashfern when Lord Chancellor, I came into contact with people driven to appeal, often as lay litigants in person, because they did not understand the reasons for the decisions affecting their cases.
Although this is a different aspect of decision- making, I suggest that it makes the point that a lot of wasted time, and unnecessary heartache, in the civil justice system could be avoided if people were entitled
to and were actually given--in plain English, of course--clear reasons for the key decisions in their cases.
Lord Donaldson of Lymington: I should like strongly to support this amendment on the basis partly of trying to remove a sense of injustice on the part of the person refused funding, but much more on the basis of causing those who are deciding the matter to think through why they are refusing funding. That view is consistent with the view that is being taken by the courts--it was being taken by the courts even when I was in office--which was in all circumstances to try to encourage not the High Court but the tribunals and lower courts, and in many cases judicial review, to give reasons. I was responsible, with others of course, for giving leave to apply for judicial review, largely on the basis that while the authority concerned might well have been right we just did not know, because of the failure to give reasons. So, both from the point of view of deciding whether anybody ought to object to the refusal, but much more in terms of improving the decision-making process, I think that something on these lines ought to be included.
The Lord Chancellor: Clause 9(5) already lays down that the code must include procedures for appealing against decisions, and I agree with the noble and learned Lord, Lord Donaldson of Lymington, that an integral part of such a procedure must be to give the applicant reasons for the decision. Not to do so would breach basic principles of natural justice and, I am sure, would lead us very quickly to judicial review of the commission.
My officials are working on the details of the information that unsuccessful applicants will be given. I expect them to be set out in the code when it is finalised. A draft appeals procedure is already contained in the version published last week, but it does not go as far as the points we are currently discussing.
I take a similar view of information about alternatives. One of the criteria on which funding can be refused will be the existence of an alternative. Providers will have to advise applicants whether there are alternatives so that they can give them a good idea of whether their applications are likely to succeed. In fact, where an alternative exists I expect that many will not even put in an application. But there will be situations where someone has been turned down for some reason or another and will want to know about alternatives. Given that one of the tasks of the commission will be to give basic advice about the availability of services, doing this should become second nature. I am sure that there will be no harm but much good in making it an obligation at this stage of the process as well.
That leaves the most obvious case, simple refusals, for which the amendment would require reasons, which we should in any event give before the appeal to which I have referred could be meaningful. So, if I may, in the light of this debate, I will take this amendment away
and give it positive consideration. On that basis, I invite the noble Lord to withdraw his amendment in its present form.
Lord Kingsland: I am most grateful to the noble and learned Lord the Lord Chancellor for his reply. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 123 to 129 not moved.]
Clause 10 [Terms of provision of funded services]:
Lord Archer of Sandwell moved Amendment No. 130:
The noble and learned Lord said: While my noble and learned friend's ear is so obviously open, this may be a propitious moment at which to introduce the debate on my amendment. Clause 10 deals with the contributions which a recipient of services from the community legal service shall be required to pay. At present we do not know what the rules will be because the Bill provides that they will appear in regulations. It may be that my noble and learned friend will take advantage of this debate to give us some indication of what the regulations may contain. They are not regulations which, according to Clause 23, are to be subject to the affirmative procedure. That may make it all the more important that we should have some indication of what they may say.
My amendment is designed to ensure that one matter is not left uncertain: that no one, as a condition of access to justice, shall be required to pay a contribution which is beyond his means. One criterion of that seems to me to be where some other authority has investigated the applicant's means and found that they are not sufficient for his needs.
I note that the noble Lord, Lord Goodhart, together with the noble Lords, Lord Phillips and Lord Kingsland, have set their names to Amendment No. 133, which seeks to impose a similar constraint with respect to capital resources. Subject to anything which may emerge in this debate, I support their amendment, which is wholly consistent with mine. I beg to move.
Lord Goodhart: I rise briefly to say that I sympathise with the view that it seems unnecessary to have rules about recovering contributions from someone who clearly is not in a position to pay them.
Lord Falconer of Thoroton: I hope that the noble and learned Lord, Lord Archer of Sandwell, will forgive me if I do not take up his gentle invitation to give details of what may be in the regulations. It may be that we shall do that later, but I am not in a position to do it at the moment.
The noble and learned Lord's amendment goes to the important issue of the relationship between eligibility for social security benefits and for help from the community service fund. The effect of the amendment
The noble and learned Lord's argument is that, if someone's means have already been assessed for social security purposes, they should also qualify for help from the fund. In other words, he says that, if a person's means are low enough to warrant help from the state with living expenses, help for legal services should be automatic. If that were the position, his argument would be very attractive. Unfortunately, it is not as simple as that.
Currently, recipients of income support and income-based jobseeker's allowance are indeed automatically qualified for legal aid without contribution. In the jargon, they are "passported" through the means test. But there are other means-tested social security benefits that do not automatically qualify the recipient for legal aid--with good reason. Income support and jobseeker's allowance are benefits designed to guarantee a minimum level of income, and the eligibility limit for legal aid without contribution is aligned with that minimum level of income. Other means-tested benefits, however--for example family credit--are available in certain circumstances to people with significantly higher income. It would not be fair to allow family credit recipients free legal aid when people on the same income would be required to pay a substantial contribution. The powers under the Bill should be wide enough to allow us to replicate the position that currently exists under legal aid, which seems fair. This amendment would prevent that. In those circumstances, I ask the noble and learned Lord to withdraw the amendment.
Lord Archer of Sandwell: My noble and learned friend correctly paraphrased my argument. He equally correctly pointed out where it breaks down. I understand that his heart is in the right place, even though his ear is not as open as was that of my noble and learned friend the Lord Chancellor at an earlier stage. Perhaps we should both reflect further on the problem. Clearly we both want to achieve a just result. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale moved Amendment No. 131:
Page 6, line 33, after ("individual") insert (", other than a person who is in receipt of any means-tested benefit,").
7.15 p.m.
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